The attitude of courts and public institutions towards the multicultural reality

THE ATTITUDE OF COURTS AND PUBLIC INSTITUTIONS TOWARDS THE MULTICULTURAL REALITY Manuel Carrasco Durán I. PURPOSE OF THE WORK AND THEORETICAL PREMISES The aim of this Essay is to examine how courts and public institutions have dealt with conflicts caused by the varied practices of distinct cultural groups. The conflicts that will be examined are extracted from the Spanish reality, although the work will also allude to other European contexts. If we do not want to limit ourselves to a mere narration of cases, but instead want to judge the reaction of public institutions to those conflicts, we must set some premises from which we will be able to form an opinion and judgment about them. First, from a juridical point of view, there are several sources of conflict arising in the multicultural context. Individuals must fulfill certain conditions, which are set in our laws from a cultural perspective, to exercise some rights. There are also legal rights and institutions conceived from particular cultural perspectives. Additionally, there are prohibitions and obstacles to behaviors that differ from those characteristic of the national group, which holds the position of political, social, and economic leadership in the state. We can consider these conditions, contents, institutions, obstacles, and prohibitions to be culturally conditioned. When a state and a legal system attempt to create a space for the coexistence of all people within the state’s territory, the cultural perspective should not play any role in the juridical decisions concerning what is allowed and what is forbidden or on what conditions the state should remain neutral in the cultural domain. Thus the state must not show any preference for any cultural solution when making such determinations.1 This prohibition is necessary; otherwise, by accepting certain cultural preferences, the state is at the same time excluding those of other cultures. Such a process would inevitably cause the state to contradict its inclusive purpose.2 These culturally conditioned contents, institutions, obstacles, and  Professor of Constitutional Law, University of Seville. 1. See generally N ATHAN GLAZER, WE ARE ALL MULTICULTURALISTS NOW 20 (1997) (exploring “the conflict over multiculturalism,” the “social situation from which it has emerged,” and considering its “implications for the future of American society”); William A. Galston, Two Concepts of Liberalism, 105 ETHICS 516, 524–28 (1995) (favoring neutrality in liberal states as a means for individual and group differences to persist and be recognized—“we cannot give diversity its due without attending to its institutional preconditions . . . no pluribus without the unum”). 2. The aim is to treat cultural diversity like political and ideological diversity are treated when we speak about the inclusive purpose of the state and the constitution. Klaus Stern’s classical ideas 444 Vermont Law Review [Vol. 30:443 prohibitions, when incorporated into law, reflect the state’s favoritism of the cultural preferences of the leading social groups over the cultural preferences of the other smaller social groups. Put more simply, neutrality should be conceived of as active neutrality. In this sense, neutrality is not indifference, but rather doing everything that is possible “to help or to hinder” everyone to the same degree.3 Second, the subject of our legal rights is that of the individual—the single person—not the cultural group. While a culture is a collective phenomenon in which experiences, customs, behaviors, language, and life philosophies that are common to a social group can be formed, the right to follow these customs belongs to the individuals who compose these groups. If we consider dignity and autonomy of the individual to be basic principles of our law, from which constitutionally recognized rights derive, then we must admit that individuals have the right to follow the behaviors of the group defining their cultural framework or to follow other behaviors. We must also accept, as a consequence, that the group has no right to force its members to follow the behaviors that are supposed to be characteristic of it.4 In any case, there are certainly claims common to the majority of the members of a group that are expressed collectively through the conferred right of a group’s representatives.5 We can define cultural claims as those about the inclusive purpose of the state can be applied to treat multicultural diversity. For more on the inclusive purpose of the state, see Ruth Rubio Marín, La inclusión del inmigrante: un reto para las democracias constitucionales, in EXTRANJERÍA E INMIGRACIÓN: ACTAS DE LAS IX JORNADAS DE LA ASOCIACIÓN DE LETRADOS DEL TRIBUNAL CONSTITUCIONAL 11 (Centro de estudios políticos y constitucionales, Cuardenos y debates No. 160, 2004) (Spain) [hereinafter EXTRANJERÍA E INMIGRACIÓN]; and Javier de Lucas, La(s) Sociedad(es) Multicultural(es) y los Conflictos Políticos y Jurídicos, in LA MULTICULTURALIDAD 59, 83–84 (Consejo General del Poder Judicial, Cuadernos de Derecho Judicial No. 6, 2001) (Spain). 3. JOSEPH RAZ, THE MORALITY OF FREEDOM 113 (1986) (quoting Alan Montefiore, Neutrality, Indifference and Detachment, in N EUTRALITY AND IMPARTIALITY: THE UNIVERSITY AND POLITICAL COMMITMENT 4, 5 (Alan Montefiore ed., 1975)). 4. Certainly, the concept of human dignity has often been used to criticize the idea of the existence of cultural rights from a perspective that equates admitting the existence of such rights with imposing a collective restriction upon an individual’s behavior, contrary to his or her autonomy. An interesting journal article, Eva Martínez Sempere, Derechos humanos y diversidad individual, 4 ARAUCARIA vol. 4, no. 8, 2002, available at http://digbig.com/4pfer, follows this line of reasoning. These theories value an individual’s right to autonomy. To overcome the divide between human dignity and culture, we must consider the right to one’s own culture as an element of human dignity. 5. See Matteo Gianni, ¿Cuál Podría Ser la Concepción Liberal de Ciudadanía Diferenciada? [Which Could Be the Liberal Conception of Differentiated Citizenship?], in LA MULTICULTURALIDAD, supra note 2, at 13 (regarding problems with representation of small groups); Iris Marion Young, Deferring Group Representation, in E THNICITY AND GROUP RIGHTS 349, 351 (Ian Shapiro & Will Kymlicka eds., 1997) (discussing problems with group representation of various interests, experiences, and needs). 2006] Attitude of Courts 445 that are expressed to: (1) change the laws in order to modify or abolish the conditions set for the exercise of a right; (2) change the content of a right or the definition of an institution; (3) abolish obstacles to and prohibitions on the exercise of a right; or (4) include in the definition of the rights and institutions concepts that reflect the cultural group’s understanding of them. But recognizing a group’s right to force its members to follow the behaviors considered by its representatives to be characteristic of that group creates an abusive imbalance of power within the group that limits the dignity and autonomy of its members.6 Synthesizing the collective nature of cultural phenomena with the individual right to live one’s own culture can resolve the classical opposition between universalism and multiculturalism.7 Obviously, it is impossible to ignore the existence of collective rights. For instance, in the domain of federalism, official recognition of the language within a cultural community can be demonstrated by the requirement that all school teaching must be conducted in a certain language. In this example, the measure is based on the right of the community to keep its cultural characteristics by requiring that all its members be educated in the official language, ignoring parents’ possible desire that their children receive an education in another language. Such is the case in Catalonia, where the autonomous political institutions have decided that Catalan is the language that must be used as a “vehicle” for teaching at school.8 But rights based on cultural facts should not be extended to the point at which they force the members of a cultural group to 6. JUAN JOSÉ SEBRELI, EL ASEDIO A LA MODERNIDAD: CRÍTICA DEL RELATIVISIMO CULTURAL (5th ed. 1992). 7. For a complete examination of the questions raised by the concept of collective rights, see generally Neus Torbisco Casals, La Intercultualidad Possible: El Reconcimiento de Derechos Colectivos, in LA MULTICULTURALIDAD, supra note 2, at 271. According to this author, who follows Raz’s theories on this point, collective rights can be understood as rights to public goods, that is to say, to goods that are important for the welfare of a group of people, in such a way that reference to that group becomes necessary. Id. at 304; see also R AZ, supra note 3, at 138 (discussing different conceptions of “welfarism”) (citing Amartya Sen, Utilitarianism and Welfarism, 76 J. PHIL. 463, 471– 79 (1979)). According to Rainer Baubök, the justification of collective rights comes from individual interests and the decisive value of individual’s welfare stemming from those individual interests, not from a decisive value of the collective by itself. Rainer Baubök, Justificaciones liberales para los derechos de los grupos étnicos, in CIUDADANÍA: JUSTICIA SOCIAL, IDENTIDAD Y PARTICIPACIÓN 159, 171 (1999) (Spain). 8. Arts. 20–21 of the LLei 1/1998, de 7 de gener, de política lingüística, Parlament de Catalunya [Law of Jan. 7, 1998 of political linguistics, Catalonian Parliament] (Diari oficial de la Generalitat de Catalunya [D.O.G.C.] 1998, p. 291) (Boletín Oficial del Estado [B.O.E.] 1998, 2989), available at http://digbig.com/4pffk. See generally Pau Puig i Scotoni, Exercising Self-Determination Without Jeopardising the Rights of the Others: The Catalan Model, 14 ST. THOMAS L. REV. 395 (2001) (discussing the “Catalan model” of self-determination). 446 Vermont Law Review [Vol. 30:443 act in the way considered characteristic of that group in their private lives. Rights based on cultural elements must be recognized in order to increase the possibilities from which people can choose a way of life and not to reduce to only one possibility individuals’ options to autonomously choose their own behavior, no matter how much that possibility is supported by cultural arguments. Attempts to force people to follow one line of behavior should not be considered as a cultural sign, but as a sign of the existence of power relationships among the members of one social group. Third, the idea that rights of cultural identity derive from universal rights—as asserted in most classical theories of liberalism—is a fiction. We know that all individuals have a cultural environment that forms the basis of their behavior, feelings, and beliefs. The cultural constructions of the elitists of the groups that have directed the political, social, cultural, and economic life in every state have been the origin for the creation of a national culture.9 This national culture has been considered to be the natural culture. The cultural elements of juridical norms have remained hidden because they were assumed to be natural. These cultural elements were accepted only because they were treated as natural elements of citizens’ rights. In this way, the cultural component of citizenship has remained traditionally invisible. But this exclusion has resulted in the idea of a supposed universal citizen, which affected only those individuals who were not members of society’s leading cultural group. Those who were members of the culturally leading group were able to practice their cultural preferences because those preferences were considered to be natural attributes of the universal citizen. The right to equality consecrated in a state’s constitution was reserved for those who fulfilled the legal conditions for citizenship.10 Those who practiced different lifestyles had to accept, in 9. For discussion of the cultural costs of creating a nationality, see generally WILL KYMLICKA, MULTICULTURAL CITIZENSHIP: A LIBERAL THEORY OF MINORITY RIGHTS 10–25 (1995) (outlining the patterns of cultural diversity and noting the criticism that multiculturalism “ghettoizes minorities”); DAVID MILLER, ON NATIONALITY 119–30 (1995) (recognizing the difficulty of reconciling the demands of ethnicity with the demands of nationality); YAEL TAMIR, LIBERAL NATIONALISM 140– 41 (1993) (noting the inherent danger of the modern nation–state to alienate cultural minorities and discussing Kymlicka); CHARLES TAYLOR, RECONCILING THE SOLITUDES: ESSAYS ON CANADIAN FEDERALISM AND NATIONALISM 187–200 (Guy Laforest ed., 1993) (attributing the “root cause” of Canada’s fractured nationality to Canadian society’s failure to recognize various cultural groups); de Lucas, supra note 2; Joseph Raz & Avishai Margalit, National Self-Determination, reprinted in JOSEPH RAZ, ETHICS IN THE PUBLIC DOMAIN: ESSAYS IN THE MORALITY OF LAW AND POLITICS 110, 110–30 (1994) (observing that the case for self-government ignores considerations of “fundamental individual interests”). 10. For a description of groups that have been traditionally excluded, see Iris Marion Young, Polity and Group Difference: A Critique of the Ideal of Universal Citizenship, in F EMINISM AND POLITICS 401, 401–29 (Anne Phillips ed., 1998); see also LUIGI FERRAJOLI, DERECHOS Y GARANTÍAS: 2006] Attitude of Courts 447 the best of cases, the state’s indifference and their own invisibility in the eyes of the state. Within this framework, different ways of life were accepted in the private sphere but were publicly hindered or prohibited by regulations stemming from the cultural perspective of the leading social group. In the worst of cases, the members of the nondominant cultural groups were punished or persecuted, and their ways of life forbidden, even in the private domain. In this sense, specific cultural groups seek either the equal exercise of their members’ rights, on the same terms as those exercised by members of the leading social group, or the inclusion of a particular group’s norms and values in the definition of rights and institutions collectively supported by the members of a separate, specific cultural group. Either way, equality is no longer a right of a nonexisting, universal person, but rather becomes a right to live one’s own cultural preferences on equal terms with those who follow other cultural preferences, since the state must remain neutral. Fourth, it is certain that law is a cultural product of the group with the ability to participate in the lawmaking process. This participation can be direct or, ordinarily, by means of political representatives. In reality, not all who live in the territory of a state can participate in the election of its representatives. Immigrants who have not obtained state citizenship, for example, are excluded.11 Nevertheless, a state must ensure the coexistence of all people within its territory. If we compare and analyze these ideas, we will find a source of cultural conflict. People who live within the state, many of them permanently, live under laws approved by representatives whom they did not elect. In other words, the task of creating culturally neutral laws is entrusted to representatives who have been elected, not exclusively, but fundamentally, by the members of the leading cultural group in society. As a result, representatives with specific cultural backgrounds are responsible for making culturally neutral laws to help the state fulfill its inclusive aim. Service employees and judges usually belong to the same leading cultural group and, similarly, are entrusted to make decisions that should not be culturally conditioned. The way in which public representatives, service employees, and judges favor their own cultural values over those of alternative groups also determines the way in which laws and public decisions will be culturally conditioned. LA LEY DEL MÁS DÉBIL 75 (Andrés Ibáñez & Andrea Greppi trans., 1999). 11. Rubio Marín, supra note 2, at 17–29; RUTH RUBIO-MARÍN, IMMIGRATION AS A DEMOCRATIC CHALLENGE: CITIZENSHIP AND INCLUSION IN GERMANY AND THE UNITED STATES 2 (2000); RICARD ZAPATA-BARRERO, MULTICULTURALIDAD E INMIGRACIÓN 26–90 (2004). 448 Vermont Law Review [Vol. 30:443 Fifth, stating that all laws are culturally conditioned, or stating that laws would be of such a general nature in order to accommodate all the groups within the state’s territory, would make them unenforceable because every individual could excuse his behavior with a cultural exception. In a context like this, the law would fail to serve as a criterion to judge conflicts of interest because the cultural customs of the group would prevail over the law. The state would also fail to reach its inclusive goal, since the various cultural groups would continue to follow different value systems without any communication or commonalities between them. For this reason, it is necessary to underscore the fact that not every condition to exercise a right can be considered culturally determined—even though such conditions are common in some cultural groups. Here we must contrast the juridical approach from other scientific approaches such as the sociological or anthropological ones. From a sociological or anthropological perspective, it is not difficult to examine objectively the characteristic behaviors of a cultural group, since it is the mission of a sociologist or anthropologist only to describe, rather than judge, the behaviors. Law, in contrast, is a science that must evaluate and judge behaviors by certain juridical criteria that form the basis for accepting or rejecting such behavior. The aim then is to find a criterion that could serve to judge the attitude of laws and public decisions toward the cultural components and characteristic behaviors of different social groups. Individual human dignity is the common value that must be respected by all groups. This value limits the ability of group members to justify behavior that infringes on another’s dignity based on cultural grounds. In fact, if we decline to use the cultural attitudes of one group to judge the attitudes of another group— since our judgments must be neutral—the individual is the only remaining common element that can be preserved in all contexts regardless of the individual’s cultural makeup. Sixth, because we have considered that the conditions, obstacles, and prohibitions set by laws in relation to cultural practices must not be considered as juridically justified when they are culturally conditioned, the question, then, becomes how to determine in fact whether or not they are culturally conditioned. Such laws are not culturally conditioned when their purpose is to preserve equal possibilities for: (1) respect and protection of constitutional rights; (2) exercise of those constitutional rights; and (3) preservation of constitutional values. Such constitutional rights express, as a purely juridical construct, the centrality of the individual in a democratic society and establish the juridical concept of human dignity. Obviously, laws that place conditions on these rights have a cultural origin and context. 2006] Attitude of Courts 449 But while a sociological or anthropological approach stresses the cultural origin of behavior, the juridical approach focuses on the goals and effects of the laws to determine whether the behavior has real cultural significance worthy of protection. A law may originate in a chamber composed primarily of members of the same cultural group, but such a law cannot be considered culturally conditioned if it is not directed at making one cultural concept prevail over another, especially if it is aimed instead at ensuring individuals’ constitutional rights. Human dignity, expressed by the recognition of those rights, is a value that can be generalized and attributed to all people on equal terms, since no one can claim that one individual’s human dignity is less valuable than another’s. Characteristic behaviors of a group will be considered real cultural practices if they have no negative consequences for the members of that group to exercise their individual rights. If such practices restrict the individual rights of some members of the group, then we will not consider them real cultural practices, but rather the result of power relationships that are generalized within the group. Power relationships cannot be characteristic of a culture but can be characteristic of a certain time. Although culture can evolve by itself or through contact with other outside cultures, power relationships within a culture can change without altering the essence of the culture. Therefore, power relationships are not worthy of the same protection as cultural practices. In fact, if we examine our history, we can see how many behaviors and attitudes that were characteristic of certain times have changed when the power relationships that they expressed changed, while the culture itself remained essentially the same.12 The same public preference for one cultural group over another can be considered the expression of a power relationship. If we reject such power relationships, we should also reject power relationships between members of the same cultural group that involve a restriction of constitutional rights on one part of its membership, especially when the members favored by that relationship try to disguise the restriction as cultural custom. 12. For instance, it would be unacceptable to consider that social discrimination of women in the most varied domains (work, education, family, etc.) is an element of the Spanish national identity. This is so despite the fact that Spain certainly kept some discriminatory norms towards women and socially excluded women’s access to some jobs until the late 1970s and even the 1980s. By that time, most Western European countries had already been enforcing nondiscriminatory policies that favored equality between men and women. Certainly that situation has since changed. Spain’s current policies on equality have the same achievements and faults as the rest of the Western European countries. Social change has been more sudden in Spain in this domain because Spain has had to enforce nondiscriminatory policies at the same level of other European countries coming from a situation of backwardness in this movement towards equality, but it would be absurd to consider this real social change as an adulteration of a supposed, traditional, Spanish national identity. 450 Vermont Law Review [Vol. 30:443 On the contrary, if conditions and restrictions on rights cannot be linked to preserving constitutional rights for all individuals, we will have a strong suspicion that they are culturally conditioned and that they express a preference for one cultural point of view over others. If equality helps guarantee human dignity, culturally conditioned terms set by laws and public decisions interfere with the respect due to human dignity because they produce a hierarchy among different cultural expressions in which one is given preference over the others. In the same sense, we will consider obstacles and prohibitions that restrict some cultural practices to be culturally conditioned even if they apply to all cultural practices regardless of their cultural origin. A multiculturalist society is a society that guarantees its members the right to express their chosen cultural concepts in a context where public institutions are neutral and where the relationships among the members of different cultures are developed in an atmosphere of freedom, equality, tolerance, individual autonomy, and human dignity. Such a society guarantees an open forum among people with different cultural concepts in a framework of freedom and equality. Finally, the study about how different cultural practices can be recognized and accommodated by the laws—or the study on multiculturalism—must be contextual and practical. Considering the study as contextual involves an awareness that all arguments make sense only in a concrete context. This context can be geographic (and the politics for accommodation can vary depending on the fact that we are examining a local, regional, national, or international context, and can vary depending on which local, regional, national, or international context we examine), social (we can consider cultural conflicts as a result of the social exclusion of the people who belong to a cultural group), economic (if we consider cultural conflicts as a result of economic factors), or cultural (we can consider cultural conflicts as the result of the contact among different cultures). The approach to cultural conflicts can also vary depending on which scientific point of view we adopt to deal with them, whether juridical, sociological, or anthropological. The arguments addressing a conflict may differ depending on the context in which we place ourselves; such arguments may be valid explanations and solutions in one context but not in others. In the same sense, cultural problems and claims can differ depending on fields of multiculturalism that exist in our separate societies. Groups that are characterized by the sexual orientation of their members argue for rights that have been traditionally withheld from them because of their sexual orientation. Cultural groups that immigrate into our society often clamor for the recognition of their cultural specificity, expressed through 2006] Attitude of Courts 451 rights common to the rest of the population such as education, work, familial relationships, and so on,13 and mix these cultural claims with other social and economic claims. Claims by cultural minorities in federal contexts require authorities to the autonomous political institutions to recognize and preserve the cultural differences of those groups. The creation of an integrated public forum in Europe that embraces the identities of the European states and regions is another advance in the multiculturalism field. It is evident that we cannot examine all fields of multiculturalism in this Essay. We will concentrate on the behaviors, attitudes, beliefs, language, and feelings of those groups that differ from the leading social and cultural group in the state, and we will concentrate on claims that are not linked to federalist elements since they do not concentrate in a specific territory within the state. Such groups arise from immigration and the maintenance of culture by descendants of immigrants or from the existence of previously excluded cultural minorities who are traditionally included as part of the state’s population. To require studies on multiculturalism to be practical is to require them to address concrete conflicts that are part of reality in concrete contexts. The studies on multiculturalism should open a permanent dialogue between theory and reality in a process that projects theories into concrete conflicts as part of an attempt to find adequate solutions and then to adjust theories according to the results of their application to those conflicts.14 II. THE CONSTITUTIONAL FRAMEWORK FOR THE MULTICULTURAL SOCIETY AND THE REACTION OF COURTS There are obvious difficulties in creating a constitutional framework reflecting the multicultural reality of our societies that is binding upon the courts and public institutions. The primary problem is that our constitutions do not recognize the individual right to behave according to the practices of a particular culture. Some modern constitutions state that public institutions must protect each individual’s right of access to culture.15 However, this right is conceived in terms of guaranteeing access to cultural goods and encouraging the state to perform a political program that puts cultural goods 13. See generally Amy Gutmann, The Challenge of Multiculturalism in Political Ethics, 22 PHIL. & PUB. AFF. 171 (1993) (discussing the nature of claims posed by multiculturalism to social justice). 14. ZAPATA-BARRERO, supra note 11. 15. See, e.g., Constitución [C.E.] art. 44 (Spain), available at http://digbig.com/4pffr (“The public authorities shall promote and watch over access to culture, to which all are entitled.”). 458 Vermont Law Review [Vol. 30:443 recognition.41 When we speak about the right to practice one’s chosen culture, we deal with a claim that is constitutional in nature. Nevertheless, there is currently a conflict between this constitutional claim and the lack of recognition by our constitutions of an individual’s right to behave according to the customs and practices of the cultural group to which an individual belongs. We can certainly derive a weak recognition of such a right from some basic constitutional principles, such as freedom and individual autonomy, but this does not provide clear protection for this right. The constitutional right to privacy can provide an additional way to deduce a sort of protection for the right to behave according to one’s own culture, but the object of discussion is not the right to behave in this way in one’s private life. Problems arise when public authorities erect culturally conditioned obstacles to common practices in certain cultural groups. Two examples will be discussed to demonstrate the kind of problems that can arise due to the lack of an express recognition of the right to one’s own culture. 1. Use of the Hijab at School In Germany, Denmark, the United Kingdom, the Low Countries, and Spain, the use of the hijab by girls at public schools is commonly allowed. It is allowed for reasons such as the freedom of belief (Germany), the rejection of discriminatory measures (Denmark, U.K., and Low Countries), and the aim to ensure the schooling of all students of foreign origin (Spain). It is curious, however, that the use of the hijab has not been admitted in any 41. In fact, one of the most frequent criticisms to Kymlicka’s theories stems from the lack of current cultural claims outlining the cultural options from which people may choose. Gianni, supra note 5, at 35; see also W ILL KYMLICKA, LIBERALISM, COMMUNITY AND CULTURE 168–69 (1989) (responding to arguments that restrictions on claims are necessary to protect society and stating that “liberalism requires that we can identify, protect, and promote cultural membership, as a primary good, without accepting . . . [the] claim that this requires protecting the character of a given cultural community”). This problem poses the question of which cultural preferences must be protected. The possible options range from restricting protection to only national communities to the broader protection of cultural groups. See Charles Taylor, The Politics of Recognition, in M ULTICULTURALISM: EXAMINING THE POLITICS OF RECOGNITION 25, 25 (Amy Gutmann ed., 1994) (contrasting “the driving forces behind nationalist movements in politics” with the urgent demand for recognition for cultural groups as a means of establishing an identity); Young, supra note 5, at 351 (discussing the difficulty in selecting a group representative); Iris Marion Young, Together in Difference: Transforming the Logic of Group Political Conflict, in THE RIGHTS OF MINORITY CULTURES 155, 174 (Will Kymlicka ed., 1995) (noting the dilemma that “a unified class-based social movement is necessary to achieve [social] change,” but that “justice within and as a result of such a movement requires differentiating group needs”). For a summary of the main arguments on this subject, see generally María José Añón Roig, La interculturalidad posible: ciudadanía diferenciada y derechos, in LA MULTICULTURALIDAD, supra note 2, at 217. 2006] Attitude of Courts 459 of these countries as an expression of a right to behave according to one’s own culture. The hijab is indeed an important cultural component. It is even more curious that in France, where the cultural argument has been considered in relation to the hijab controversy, the cultural element of its use has provided arguments to forbid this practice at schools because of the risk of dividing students into different cultural communities.42 Cases can get even more complicated. The decision of the German Federal Constitutional Court (September 24, 2003) held that prohibiting a teacher from teaching at public schools because she wanted to wear her hijab violated her constitutional rights.43 However, the reason for this decision was that the state (Baden-Württemberg) did not have a law forbidding such a practice, not that the practice was a protected cultural right.44 Baden-Württemberg and other German states have since announced that they will pass several laws prohibiting teachers from wearing the hijab in school in the near future.45 But obviously, there is no problem if a nun wears her frock in school. 2. Roma Caravans There is also an interesting decision from the European Court of Human Rights. In Beard v. United Kingdom, members of the Roma minority claimed the right to continue living in caravans according to their tradition.46 The claim was directed against decisions of local authorities of the United Kingdom forbidding them to live on the lands that the Romas owned because the caravans harmed the environment and aesthetics of the landscape.47 The authorities of the United Kingdom offered to move the Romas to other lands, but these places were uninhabitable and were not large enough to accommodate the caravans of all the families affected by the measure.48 The court acknowledged that article 8 of the European 42. Law No. 2004-228 of Mar. 15, 2004, Journal Officiel de la République Française [J.O.] [Official Gazette of France], Mar. 17, 2004, p. 5190. 43. Bundesverfassungsgericht [BVerfG] [Federal Constitutional Court] Sep. 24, 2003, 108 Entscheidungen des Bundesverfassungsgerichts [BVerfGE] 282 (F.R.G.), available at http://digbig.com/4pgta. 44. Id. 45. A comment about this decision can be found in María Ángeles Martín Vida & Sven Müller-Grune, ¿Puede una maestra portar durante las clases en una escuela pública un pañuelo en la cabeza por motivos religiosos?, 24 REVISTA ESPAÑOLA DE DERECHO CONSTITUCIONAL 313, 314 (2004) (Spain). 46. Beard v. United Kingdom, 33 Eur. H.R. Rep. 442, 464 (2001), available at http://digbig.com/4pgtb. 47. Id. at 450–51. 48. Id. at 452–53. 460 Vermont Law Review [Vol. 30:443 Convention on Human Rights, which recognizes the right to private and familial life, forces the state to allow Roma to continue their traditional way of life.49 However, the court also stated that it could not judge the decisions of national authorities about territorial policy because in such instances the court must defer to decisions of the state where the state has a discretionary appreciation margin.50 The court admitted that there is a consensus forming in Europe about the need to recognize the ways of life of minorities, but it recognized that this consensus is not yet concrete enough to require specific state obligations.51 Thus, the decision leaves the impression of having recognized an empty right. It says that Romas have the right to live according to their traditional customs, but it also says that this right can be limited by the decisions of public authorities regarding territorial policy, and that the state is not obligated to accommodate displaced persons affected by those measures. The fact that the right to one’s own culture does not have a specific constitutional recognition weakens its protection and puts it at the disposal of public authorities to limit it based on the most diverse social interests. Giving a specific constitutional recognition to such a right would strengthen its protection and would help to clearly establish its limits. One such limit must be the prohibition of widespread cultural practices that violate constitutionally recognized individual rights. CONCLUSION The attitude of courts and public institutions toward cultural diversity has often been characterized by mistrust. The practices of cultural diversity that come from specific social groups have been considered a suspicious element that tends to break the principle of equality, which is one of the fundamental bases of the democratic state. Equality has often been understood as a synonym for uniformity. There is no reflection in public institutions about how a constitution and the laws can be conditioned by cultural practices of the majority, and there is no recognition of an individual right to express one’s culture by specific characteristic behavior. When one attempts to consider questions of cultural diversity, the result has no real effect and recognizes an empty right. Similarly, there has been no attempt to change the traditional ways of interpreting the concepts of equality and neutrality in order to understand them as attitudes of equal respect for all cultures, when cultural practices do 49. Id. at 470. 50. Id. at 475. 51. Id. at 471. 2006] Attitude of Courts 461 not violate individual rights, rather than as attitudes to prevent the cultural practices of the minority groups from being performed at all.52 On the contrary, a constitution and the laws are deemed to be culturally neutral and, therefore, to set the standard for which minority cultural groups must strive to accommodate. The neutral nature of a constitution and the laws make this accommodation a unilateral process—rather than a bilateral one—by which minorities try to conform. The protection that a state gives to cultural practices comes from its prohibition on discrimination, but reality shows that this kind of protection is not sufficient to guarantee individuals’ rights to practice behaviors that are characteristic of their cultural groups. Individuals’ constitutional rights always have preference over a hypothetical collective right of a social group to perform behaviors customary within that group when these hypothetical rights contradict the constitutional rights. In fact, there is no problem in admitting that individuals’ constitutional rights have preference over the customs that are common within a group, since social practices that violate constitutional rights of the individuals of the same social group must be treated not as cultural practices but as power relationships among the individuals that compose a group. Power relationships cannot be protected over the constitutional rights of the individuals that are part of them. If we want cultural diversity to be accepted in society, it is necessary to reject practices associated with power relationships because they violate the rights of the individuals, which in turn causes mistrust and rejection among the majority of the society. Moreover, supporting those practices favors neither a free cultural dialogue nor the creation of links and the feeling of confidence among individuals of different groups. The practices of specific social groups have usually been taken into account by courts and public institutions only to reject reliance on them in cases in which they endanger constitutional rights. However, there are some cultural practices that do not affect individuals’ constitutional rights and that sometimes have not received the recognition of the right to be performed by the individuals of the social group. So these attitudes can be interpreted as culturally conditioned because they express a preference for one specific cultural practice over another, or because they tend to deny an individual’s right to express his or her own culture. The image of the universal citizen, devoid of all cultural signs, is a fiction. All people have a cultural background, and the 52. Neutrality is not considering cultural differences unimportant, but rather allowing all cultural differences to express themselves and according them equal treatment. 462 Vermont Law Review [Vol. 30:443 possibility of expressing cultural behaviors must be considered a requirement of human dignity. Human dignity is a basis for the recognition of constitutional rights, among other reasons, because the laws always have a specific cultural background. If we reject the possibility of individuals to express behaviors characteristic of their own cultures, we are admitting a preference for the social group, the cultural premises of which are expressed in the laws over the cultural options of other social groups. This contradicts the inclusive aim of the state, which must embrace all individuals who live within its territorial limits, whatever their cultural practices may be, as a guarantee of human dignity and a peaceful cohabitation. In fact, the right to express a different cultural identity is the real basis for the principle of equality in cultural terms while the uniformity imposed by laws results in inequality by giving preference to certain cultural practices over others.