Gays contest what it means to be a Boy Scout, Pueblo Indians challenge tribal rules as sexist, and black Seminole Indians fight the requirement of Indian blood for tribal membership -- all in court.

Without a change in its approach to culture, says a professor at the University of California, Davis, law may become complicit in the backlash of traditional leaders to silence dissent within cultural organizations.

Madhavi Sunder of the School of Law says current jurisprudence maintains an individual's right to either cultural belonging, with no right to contest cultural meaning, or to equality in larger society, with no right to cultural membership -- but not to both.

The legal approach threatens to freeze cultures and impede opportunities for cultural change, Sunder says. "With seismic cultural shifts underfoot, a law that does not allow for some sway within cultural groups is bound to do more harm than good."

In an article titled "Cultural Dissent," recently published in the Stanford Law Review, Sunder calls for an approach recognizing the right of members to make internal challenges to an association.

Central to the article is an examination of the U.S. Supreme Court's 2000 ruling in Boy Scouts of America vs. Dale, a case that began when a gay Scout leader fought the organization's attempts to revoke his membership.

Calling the case a "flashpoint" in culture wars, Sunder says it was the first time an association offered evidence that its ability to promote its message, here against homosexuality, was jeopardized by a state anti-discrimination law.

Sunder criticizes the majority opinion explaining the court's reversal of a New Jersey Supreme Court decision that had found the state's public accommodations statute applied. The U.S. Supreme Court myopically relied on a 22-year-old official memo about homosexuality and the legal briefs of leaders rather than being swayed by briefs from current members and sponsoring groups supporting gay membership, she says.

Sunder researches and writes about law and culture, including intellectual property, law and identity, and women's human rights.