Ja4 JLRS - 007 - 02

journal of law, religion and state
7 (2018) 129-151
brill.com/jlrsx
Sovereignty and the Constitution

The Development of Pakistan’s Grundnorm
Yaqoob Khan Bangash

Affiliation and Address: Director, Centre for Governance and Policy,
it University of the Punjab, 6th Floor, Arfa Software Technology Park,
Ferozepur Road, Lahore, Pakistan
Yaqoob.bangash@gmail.com
Abstract
The constitution of a country is the supreme national institution, and its provisions
significantly affect the development of politics and society. The process of constitution
making is key for understanding the constitution, and an assessment of the process
makes possible a better and deeper understanding of the workings of the country, its
politics, economy, and polity. The discussion of Islamic constitutionalism has recently
gained momentum, especially in the wake of a reorganization of the Middle East and
the Arab Spring. This paper focuses on the development of the first “Islamic” constitu-
tion, that of Pakistan, and analyzes the issues and problems it faced. It focuses on the
issue of sovereignty, a concept underlying modern democracy, and uses the debates
of the Constituent Assembly of Pakistan during the critical debate on the Objectives
Resolution, in March 1949. The experience of Pakistan is seminal, as we historically
understand and currently assess the issues of Islam, democracy, and the modern na-
tion state.
Keywords
Pakistan – Grundnorm – constituent assembly – sovereignty – Islamic

constitutionalism – Jinnah
© koninklijke brill nv, leiden, 2019 | doi 10.1163/22124810-00702001
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130 Bangash
1 Introduction
The constitution of a country has long been regarded as the supreme national
institution, critical for its social, economic, and political development.1 Dou-
glass North described institutions as “the humanly devised constraints that
structure political, economic and social interaction. They consist of both infor-
mal constraints (sanctions, taboos, customs, traditions, and codes of conduct),
and formal rules (constitutions, laws, property rights).”2 According to North,
non-existence or weakness of these institutions forms a main reason for the
divergence in development in the world. For example, both Spain and England
were approximately at the same level of development in the 17th century, but
their subsequent trajectories have been markedly different. North explained
it through the presence of institutions in England, where “an institutional
framework has evolved that permits complex impersonal exchange necessary
to political stability as well as to capture the potential economic benefits of
modern technology,” whereas in Spain and Latin America “‘personalistic’ rela-
tionships are still the key to much of the political and economic exchange.”3
North maintained that the current divergence between British-influenced and
Spanish-influenced economies illustrates this argument. Thus, in the the de-
velopment of institutions, the constitution being the supreme national institu-
tion, is key to the development of any country.
To fully appreciate the constitution of a country, first an understanding is
needed of the constitution-making process. This process, which may stretch
from a few months to a few years, charts the critical period in which the basic
framework of the state and polity is deliberated, debated, and decided. Central
to this process is the development of the Grundnorm. Kelsen differentiated
between constitution and Grundnorm, arguing that whereas the constitution
is the rule-making framework, the Grundnorm is the consensus formed out of
the core values of the society, which defines its nationhood.4 For example, one
abides by the traffic laws because the consensus in society is that these laws
must be observed to prevent accidents. This norm, according to Kelsen, is the
Grundnorm.5
1 See, e.g., Akmal Hussain, Power Dynamics, Institutional Instability and Economic Growth: The
Case of Pakistan. (San Francisco: The Asia Foundation, 2008), 13–17.
2 Douglass C. North, “Institutions,” Journal of Economic Perspectives, 5(1) Winter (1991), 97.
3 Ibid., 111.
4 Hans Kelsen, Pure Theory of Law (Los Angeles: University of California Press, 1967).
5 Georg Wilhelm Friedrich Hegel, Lectures on the Philosophy of World History, H.B. Nisbet
(trans.) (Cambridge: Cambridge University Press, 1975).
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Sovereignty and the Constitution 131
The present article focuses on a seminal moment in the constitutional his-

tory of Pakistan: the passing of the Objectives Resolution (or), in March 1949,
which has often been referred to as the Grundnorm of the constitution, and
which still forms part of the current (1973) constitution as Article 2A.6 This
article examines the concept of sovereignty in the or, as without a clear eluci-
dation of sovereignty there can be no rule of law, no restrictions on the exercise
of power, and quite simply, no self-enforcing constitution.
For a long time, the or has been considered the Grundnorm of the Con-
stitution of Pakistan. Writing in the Asma Jillani case, in 1972, Chief Justice
Hamoodur Rahman stated that “Pakistan’s own grundnorm is enshrined in
its own doctrine that the legal sovereignty over the entire universe belongs to
Almighty Allah alone, and the authority exercisable by the people within the
limits prescribed by Him is a sacred trust. This is an immutable and unalter-
able norm which was clearly accepted in the Objectives Resolution passed by
the Constituent Assembly of Pakistan (cap) on the 7th of March, 1949 [sic].”7
Writing in 1997 in another case, Chief Justice Sajjad Ali Shah, explained that
the or remained the only unaltered part of each of the three constitutions of
Pakistan, noting that the or was the “preamble in all the four Constitutions
including the Interim Constitution of 1972 and therefore, it has to be read for
the purpose of proper interpretation in order to find out as to what scheme of
governance has been contemplated.”8 The provisions of the or are therefore
critical for understanding the nature of the state in Pakistan.9
The or was a pioneering text in Islamic constitutionalism, and as such has
significance beyond the borders of Pakistan, where it has clearly carried weight.
On August 15, 1947, Pakistan was born as the first country in the world based on
religious nationalism, and in 1956 it was also the first country to declare itself
an “Islamic Republic.” Until 1971, Pakistan was also the largest Muslim country
in the world. The fact that Pakistan was the first country to experiment with
6 The original constitution of 1973 retained the or as its preamble, but it was made a sub-
stantive part of the constitution, as Article 2A, by General Zia ul Haq through the Revival
of Constitution 1973 Order, 1985 (President’s Order No. 14 of 1985), effective March 2, 1985.
Zia also changed the wording of the first article of the or, removing all reference to the
“state of Pakistan.” An assessment of this critical change, however, is beyond the scope of
this article.
7 Miss Asma Jillani v Government of the Punjab, pld 1972, Supreme Court 139.
8 Mahmood Khan Achakzai v. Federation of Pakistan, pld 1997 Supreme Court 426.
9 For a discussion on the topic see, District Bar Association (Rawalpindi)) v. Federation of
Pakistan, pld 2015, Supreme Court 401. The contention that the Objectives Resolution is a
“supra-constitutional” document is not accepted in the majority judgment.
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132 Bangash
blending Islamic concepts with modern ideas of democracy makes its experi-
ence critical as large parts of the Muslim world move from dictatorship and
monarchy toward democratic rule. Grote and Roder rightly note that “The first
major debate on the concept of an Islamic constitutionalism in the newly in-
dependent Islamic states took place after the creation of the state of Pakistan
in 1947.”10 An analysis and understanding of the Pakistan experience through
the or is therefore central to our understanding of the development of Islamic
constitutionalism, in the past and also in the present.
The first section of the article explains the reason why the Objectives Reso-
lution was needed and introduced in the first place. The second part of the
article traces the reasons behind the introduction of the or, focusing on its
special blend of Islamic and Western conceptions, which make it unique as
a Grundnorm. The third part discusses the arguments regarding sovereignty
in the Constituent Assembly of Pakistan (cap), and the issues it raised. The
conclusion argues that the unclear nature of the conception of sovereignty un-
dermines the establishment of the rule of law and prevents the creation of a
self-enforcing constitution that would lead to development, as it has done in
Pakistan, and by extension, in other Muslim countries.
2 Why the Objectives Resolution?
By its very nature, the or differs from the modern debate on Islamic consti-
tutionalism, which focuses primarily on the Sharia as a point of departure.
Traditional Islamic notions of constitutions have always positioned it within
the framework of Sharia or of the Prophet Muhammad’s Medinite dispensa-
tion. Scholars like Bahlul, Al-Turabi, Faruki, and others squarely situate a de-
tailed constitution within the Sharia framework.11 Maulana Maududi, one of
the most prominent modern Muslim theorists, described the Medinite state
as being founded on three basic principles: Tawhid, the unity of God, Risala,
the prophethood of Mohammad and his Sunna (way of life), and Khilafa, the
10 Rainer Grote and Tilmann Roder (eds.), Constitutionalism in Islamic Countries: Between
Upheaval and Continuity (Oxford: Oxford University Press, 2012), Introduction, 8.
11 H. Al-Turabi, Problems of Liberty, Unity, Consultation and Democracy (Jeddah, Saudi Ara-
bia: Al-Dar Al-Su’udiyyah le Al-Nashr, 1987), K. Faruki, The Evolution of Islamic Constitu-
tional Theory and Practice from 610 to 1926 (Karachi: National Publication House, 1971), and
R. Bahlul, “Is Constitutionalism Compatible with Islam?”, in P. Costa and D. Zolo (eds.),
The Rule of Law: History, Theory and Criticism (Dordrecht, The Netherlands: Springer,
2007).
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s uccession of Mohammad.12 The or, however, while being inspired by both

the Sharia and the Medinite Constitution, strikes a different chord and pres-
ents a modernist interpretation of Islamic constitutionalism, blending Islamic
and Western conceptions.
The need for an “objectives resolution” arose from the fact that the de-
mand for Pakistan by the All India Muslim League was predicated on a vague
“Islamic” model. Exactly what the model entailed was never clearly formulated
by either the founder, Mohammad Ali Jinnah, or by the Muslim League. Jinnah
continually referred to Pakistan as being built along Islamic lines, but from
his few pronouncements it is clear that he was thinking of a modern, perhaps
even modernist, interpretation of Islam. For example, in his conversation with
Mr. Weldon James, of the Collier’s Weekly, he noted:
The position of women is already equal in law to that of men. It may be

expected that their participation in civic affairs and in the professions
will increase, and that the institution of purdah, which is the result of
tradition and not of the teachings of the Qur’an, will gradually disappear.
In the old, old days it was a good idea, since in the autocratic past a king
or a chieftain might take to himself any beautiful woman he saw, and a
man was wise indeed to keep his women under cover. Custom through-
out the world tends to outlive the reason for its origin, and this one is no
exception. In the modern state such a precaution is not necessary, and it
is already on the way out.13
It is quite clear from the above that Jinnah was making his own interpreta-
tion of Islam. By dismissing the purdah—still an integral part of Muslim life
in South Asia—as mere custom and having outlived its utility, he was d eciding
for himself what the injunctions of Islam were. Nevertheless, such clear indica-
tions by Jinnah of what he considered to be Islamic and what he did not, were
few and far between. In his public pronouncements, Jinnah spoke of Islam and
Islamic principles as the basis for the future constitution of Pakistan, and even
went as far as to say that Sharia would be enforced. In his address to the Karachi
Bar Association on the occasion of the birthday of the Prophet Mohammad,
in January 1948, Jinnah said that he “could not understand a section of the
people who deliberately wanted to create mischief and made propaganda that
the Constitution of Pakistan would not be made on the basis of the Shari’at.”
12 Abu Ala Maududi, Islamic Way of Life (Delhi: Markazi Maktaba Islami, 1967), 40.
13 jp, First Series, Vol. 5, No. 112.
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134 Bangash
Still, his understanding of Sharia differed from the traditional one. In the same
speech he was reported to have said:
Islam and its idealism have taught democracy. Islam has taught equality,
justice and fair play to everybody. What reason is there to fear democracy,
equality, freedom on the highest standard of integrity and on the basis of
fair play and justice for everybody… Let us make it the future constitution
of Pakistan. We shall make it and we will show it to the world.14
In his later speeches as well, Jinnah spoke of Islam and the “Islamic way” in
broad terms, leaving open a wide window for all types of interpretation. For
example, in his broadcast to the American people, in February 1948, Jinnah
noted: “Pakistan is not going to be a theocratic state, that is, rule of or by priests
with divine mission. We have many non-Muslims such as Hindus, Christians
and Parsis. But they are all Pakistanis and equal citizens with equal rights and
privileges and every right to play their part in the affairs of Pakistan national
state.”15 Shortly after his American broadcast, however, in his message to the
Australian people, he underscored the Islamic nature of the polity, while still
insisting on the non-theocratic nature of the country. Jinnah said: “The great
majority of us are Muslims. We follow the teachings of the Prophet Muham-
mad (may peace be upon him). We are members of the brotherhood of Islam
in which all are equal in rights, dignity and self-respect. Consequently, we
have a very deep sense of unity.”16 Jinnah again mentioned that his principles
were rooted in Islam when, at a public reception in Chittagong, East Bengal, in
March 1948, he noted that the principles upon which Pakistan is founded are
“social justice and Islamic socialism.”17
Therefore, when Liaquat Ali Khan, the Prime Minister of Pakistan, intro-
duced the Objectives Resolution, on March 7, 1949, he echoed Jinnah, saying
that this was a moment second only to the independence of the country, be-
cause “by achieving independence we only won an opportunity of building up a
country and its polity in accordance with our ideals.”18 Liaquat was clear about
why Pakistan was created: “because the Muslims of this sub-Continent wanted
to build up their lives in accordance with the teachings and traditions of Islam,
14 Address by M.A. Jinnah to the Karachi Bar Association on the Occasion of the Holy Proph-
et’s Birthday, January 25, 1948, jp, First Series, Vol. vii, 48.
15 Ibid., No. 86.
16 Ibid., No. 88.
17 jp, First Series, Vol. vii, No. 202.
18 cap Debates, Vol. 5, No.1, March 7, 1949, 2.
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because they wanted to demonstrate to the world that Islam provides a pana-
cea to the many diseases which have crept into the life of humanity today.”19 Li-
aquat also made it clear that there would be no separation of religion and state
in Pakistan. Indeed, he blamed the ills of the world squarely on this separation,
noting that it is only through true adherence to Islamic values and ideals that
Pakistan can make a real contribution to the welfare of the world.20
Liaquat also emphasised, however, that Pakistan would not become a the-
ocracy. He maintained that theocracy means God’s government, and that in a
literal sense the entire world is theocratic, but because Islam does not have any
ordained clergy, “the question of theocracy simply does not arise in Islam.”21
Note that Liaquat regarded theocracy in a very narrow sense. He believed that
the fact that Islam does not have any ordained clergy (at least, Sunni Islam)
ruled out the possibility of a theocracy. According to this view, religious law
could be enforced only by clerics, whereas non-clerics would never take a
country in a decidedly religious direction. Liaquat borrowed this formulation
from the West, where in the medieval and early modern era some territories
were ruled by the Pope and bishops. As historical experience has shown, how-
ever, these European theocracies were at times more liberal than other states
in Europe, which were under a secular prince who imposed draconian and op-
pressive rules on members of religions that did not enjoy the ruler’s approval.
Liaquat’s assumption that the only regime to be avoided was theocracy rested
on a narrow understanding of how law and society worked, which is surprising
in view of the fact that he was a qualified lawyer.
One of the central reasons for the emphasis Jinnah and Liaquat placed on
Islam was their wariness of the Western and Communist models dominant in
the world at that time. The new state of Pakistan did not want to join either the
Western or the Communist camp, but wanted to show to the world that there
was a third option, which could lead to prosperity and freedom. Jinnah had
already expressed his disdain for Western notions of economics in his speech
at the inauguration of the State Bank of Pakistan, on July 1, 1948:
I shall watch with keenness the work of your Research Organization in

evolving practices compatible with Islamic ideals of social and econom-
ic life. The economic system of the West has created almost insoluble
problems for humanity and to many of us it appears that only a miracle
can save it from disaster that is now facing the world… The adoption of
19 Ibid.
20 Ibid.
21 Ibid., 3.
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136 Bangash
estern economic theory and practice will not help us in achieving our
W
goal of creating a happy and contended people. We must work our des-
tiny in our own way and present to the world an economic system based
on true Islamic concept of equality of manhood and social justice. We
will thereby be fulfilling our mission as Muslims and giving to humanity
the message of peace which alone can save it and secure the welfare, hap-
piness and prosperity of mankind.22
Liaquat shared the same distrust and disillusionment with the Western and
Communist models. In introducing the or, he emphasised the need to eluci-
date that the principles of the state will be based on Islam because both the
West and Soviet Russia used the term “democracy,” each meaning a different
thing. Liaquat argued that it has “been found necessary to define these terms
further in order to give them a well-understood meaning.”23 However, what
Liaquat termed as the “well-understood” meaning, was unclear for others
members of the Assembly. Not only were the members of the Pakistan Nation-
al Congress unsure what it meant, members of his own party also had differing
interpretations. For example, according to Liaquat, democracy in the Islamic
sense meant “equality of all men.” For some, this could easily mean “equality of
all Muslims” rather than equality of “all,” or the equality of all “Muslim men,”
to the exclusion of even Muslim women. Throughout Islamic history, Muslims
and non-Muslims were always treated differently, it is therefore reasonable to
conceive that the Pakistani state would understand the equality of all men it
this manner. The state may also interpret it to mean “separate but equal,” the
expression used to justify segregation in the us at that time. Therefore, what
appeared to be obvious to Liaquat, may not necessarily have been quite as
clear and obvious to others reading the same text.
3 Sovereignty and the Objectives Resolution
The notion that sovereignty belongs to God Almighty alone, and that it has
been delegated to the state arose immediately in the aftermath of the presenta-
tion of the Objectives Resolution. The first article of the or clearly stated that
“sovereignty over the entire universe belongs to God Almighty alone,” and that
it has been delegated to the “state of Pakistan” but “through its people,” and
22 Speech by M.A. Jinnah at the Inauguration of State Bank of Pakistan, jp, First Series, Vol.
vii, No. 452.
23 cap Debates, Vol. v, No. 1, March 7, 1949, 3.
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that it is to be exercised within “limits prescribed by Him.” This one-sentence

description of sovereignty turned on its head the modern concept of the sov-
ereignty of the people.
The modern concept of popular sovereignty developed in the social contract
schools of thought, following Hobbes, Locke, and Rousseau, in the mid-17th to
mid-18th centuries. Both Hobbes and Locke argued that individuals were the
main agents in society, and to escape the “state of nature” they formed a “social
contract” in which they agreed to give up some of their rights and freedoms to
achieve peace, security, and stability. Locke envisaged the social contract to ex-
ist in various forms, but for Rousseau, in “The Social Contract,” it was a political
order along the lines of a republic: the legitimacy of government was derived
from the people in a democratic sense.24
In the Islamic tradition, however, sovereignty rests with God, and can be
exercised by the people in a limited way, circumscribed by the laws of the
Quran and Sunnah of the prophet Mohammad. People are therefore not “free
agents” in the Western sense. Several modern Muslim theorists, including
Maududi and Javed Iqbal, agree with this understanding and argue that in an
Islamic country only laws dictated by God, rather than by the people, should
be enforced.25
The concept of sovereignty was hotly contested by members of the two
political parties represented in the cap, the Pakistan Muslim League and the
Pakistan National Congress. In his opening speech, Liaquat Ali Khan empha-
sized that the article defining sovereignty was important because “all authority
is a sacred trust, entrusted to us by God for the purpose of being exercised in
the service of man.”26 He further explained that this article did not mean that
any type of tyranny could be established by anyone; indeed, Liaquat contend-
ed that because authority had been delegated to the people, only the people
can decide how that authority is exercised.27
The members of the Pakistan National Congress were quick to detect prob-
lems with the wording of the article on sovereignty. What if someone declared
himself to be the chosen one of the Almighty and made himself supreme,
24 For further details see, Thomas Hobbes, Leviathan (Oxford: Oxford University Press,
1998), Book ii, Chapters 17–19, John Locke, Second Treatise on Civil Government (New York:
Spark Publishing, 2014), and Jean-Jacques Rousseau, The Social Contract (New Haven: Yale
University Press, 2002).
25 See, for example, Javed Iqbal, The Concept of State in Islam: A Reassessment (Lahore: Iqbal
Academy, 2002), and Syed Abu A’la Maududi, The Islamic Law and Constitution (Lahore:
Islamic Publications, 1960).
26 Ibid., 2.
27 Ibid., 3.
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138 Bangash
asked Mr. Bhupendra Kumar Datta? Mr. Datta questioned putting the state be-
fore the people in the order of delegation, and wondered whether this led to
the “ deification of the state.”28 His colleague, Professor Raj Kumar C
hakraverty,
dwelt further on this issue and argued that the state should not become
“supreme over the people.” He proposed an amendment to replace the phrase
“the State of Pakistan through its people,” with “people of Pakistan.”29 His rea-
soning was that in the current wording it could appear that the state “can wield
its authority in any way it likes, of course under God.” He argued that in the
preamble under debate, the State, once created by the people, existed inde-
pendently of them, “quite supreme over all the people.”30
Another member of the cap, Mr. Prem Hari Barma, wondered what the
“limits prescribed by Him [God],” mentioned in the first article, were, and
proposed an amendment to remove this clause. He contended that no hu-
man being could do anything without it being permissible by God, and that if
the resolution was pointing out this obvious fact, the clause was superfluous.
Otherwise, who was to judge what “limits” did God enjoin upon the exercise of
His sovereignty by the people? Mr. Barma argued that “each one of the para-
graphs of the Objectives Resolution should be self-explanatory.”31 Herein lay
the crux of the problem. Although it may be argued that the sovereignty of
God was abstract and as such compatible with modern notions of democracy,
the real issue was that His sovereignty was not being delegated to the people
directly, but through the state, which could become supreme. The vagueness
of the “limits” prescribed by God on the exercise of His sovereignty created
another problem: who was to decipher what these limitations were, and how
would they limit the function of the sovereignty of the people and the state?
The constitution envisioned by the or was thus limited by the existence of a
powerful state and by limits prescribed by God. This factor made the constitu-
tion simply non-self-enforcing.
Concerned that sovereignty was not going to rest with the people of the
country, another member of the cap, Kamini Kumar, introduced two amend-
ments that stated: “Wherein the National Sovereignty belongs to the people of
Pakistan; Wherein the principle of the State is Government of the people, for
the people, and by the people.”32 Kamini Kumar explained that in the proposed
resolution there was no clarity regarding “in whom actually in the functioning
28 cap Debates, Vol. v, No. 2, March 8, 1949, 14–15.

29 Ibid., 17.
30 Ibid., 18.
31 Ibid.
32 Ibid., 20.
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of the constitution—the very basic factor to be considered—does the actual

sovereignty lies.”33 He also wanted to make clear in the constitution that the
people should be sovereign in action in all respects.34 Kamini Kumar inter-
preted the “people” in a broad sense, marking them as citizens of the state,
without discrimination on any basis. He contended that “[i]n accordance with
the spirit of Islam the Preamble fully recognises the truth that authority has
been delegated to the people irrespective of whatever faith they may follow,
and to none else and that it is for the people to decide who will exercise that
authority.”35 Kamini Kumar repeatedly stated that there would be no distinc-
tion between a majority and a minority in an Islamic State, so that the notion
of Dhimmis—protected non-Muslims with limited rights—does not creep into
the conception of the state.36 If the state were to remain democratic, Kamini
Kumar stated, it must treat all its citizens equally.
In their reply, the treasury benches dismissed all these considerations.
Professor Ishtiaq Ahmed Qureshi, lately professor of history at St. Stephen’s
College in Delhi, emphatically stated that there could be no deification of the
state or provision for absolute authority. He said: “…how can a person believ-
ing in the existence of God simultaneously believe in the deification of the
State? It is a contradiction in terms.”37 He also argued that “absolute despotism
is unknown to Political Science,” and that if people “so desire, [they] can sup-
port absolutism.”38 He saw no problem with the fact that there was a chance of
despotism, because that could happen in any case if the people wanted it, and
belief in God and His sovereignty did not in any way permit the usurpation of
authority by any one individual claiming to be acting on the authority of God.
For Maulana Shabbir Ahmed Osmani, Pakistan was to show another path
to the world caught between the “vortex of materialism” and the “darkness of
atheism and agnosticism.”39 Echoing both the founder of the country and the
first prime minister, Maulana Osmani heralded the presentation of the or as
a moment that would turn Pakistan into a “beacon of light to the world.” For
this clerical member of the cap, in this new dispensation the sovereignty of
33 Ibid.
34 Ibid., 21.
35 Ibid.
36 For more on the concept of Dhimmi and non-Muslims in an Islamic country, see Syed
Abu A’la Maududi, The Rights of Non-Muslims in Islamic State (Lahore: Islamic Publica-
tions, 1961), and Bat Ye’or, Understanding Dhimmitude (New York: rvp Press, 2013).
38 Ibid.
39 Ibid., 44.
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140 Bangash
God was also essential, as it was the primary distinguishing factor of Pakistan
when compared to the Capitalist West and the Communist East. Osmani ar-
gued that because sovereignty was God’s, any polity operated within certain
limits, stressing that a polity in which God was sovereign surely operated with-
in limits, as mankind must know “as to what was sanctioned and authorised
by Him.”40 These limitations clearly meant that there was a role in govern-
ment for religious texts, at least the Quran and Sunnah in an Islamic country,
and for religious scholars who would interpret these texts. Although most Mus-
lims claim that Islam has no clergy (a contested notion, as all forms of Shia
have a clergy, and even Sunni Sufi Muslims follow Pirs), the interpretation of
religious texts was one of the most important parts of the constitution framing
process in Pakistan.
Osmani, who was the President of the Jamiat-e-Ulema-e-Islam, a Deobandi
party affiliated with the Muslim League, also described his views on how an
Islamic State differed from other states, especially when it came to freedom of
action and operation. He stated:
An Islamic State is not a State in its own rights, with authority inherent in
it. It is a State to which authority has been delegated. The real sovereignty
belongs to God. Man is his viceregent on Earth and discharges his obliga-
tions in this respect alone with other religious duties on the principle of a
“State within a State” and within the limits prescribed by God.41
According to Osmani, the powers, role, and actions of the state were heavily
circumscribed in this dispensation, and the state had to act within the limits
that God had prescribed for it. Explaining his views further on the role of dif-
ferent people in an Islamic State, Osmani contended that not everyone living
in an Islamic State would have the same rights, privileges, and obligations. He
noted: “It is evident that such a State which is founded on some principles,
be it theocratic or secular (like the u.s.s.r.), can be run only by those who
believe in those principles. People who do not subscribe to those ideas may
have a place in the administrative machinery of the State but they cannot be
entrusted with the responsibility of framing the general polity of the State or
dealing with matters vital to its safety and integrity.”42 Thus, in two sentences
Osmani relegated the non-Muslim citizens of Pakistan to secondary status in
the running of the state. As the state was going to be run on Islamic principles,
40 Ibid.
41 Ibid., 45.
42 Ibid.
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and non-Muslims by definition do not “believe” in those principles (otherwise

they would be Muslims), they would automatically be barred from the main
decision-making bodies of the state, relegated to merely having “a place” in
some capacity in the administration. This is what the non-Muslim members
of the cap feared, and this is the position that Osmani was defending. He even
compared the modern state with the Islamic Caliphate, and argued that the
Caliphate was much better for the general welfare of the people than the mod-
ern state.43
Another member of the ruling party, Mian Muhammad Iftikharuddin, who
was known to have leftist tendencies, argued that he was rather surprised that
the mention of God in the or even elicited such comment. He noted: “As a
matter of fact it amused me how the people of our country have hailed this
Preamble, this statement of Objectives, as a new discovery… Sir, the author-
ity, whether we say it or not, is derived from that Power. It does not lie within
our power to change the laws of nature or to add to or detract from the Power
of Nature’s God. Therefore… we have not done anything extraordinary.”44 He
declared, however, that the people, not the religious texts or the ulema, were
the final arbiters of what the limitations on the state were. He noted: “We know
that the final authority to decide about the limits, the final authority to inter-
pret the rights of the people, is the people themselves.” He argued that because
Islam does not recognize any clergy, the real authority was only the people.45
This was a novel understanding of the preamble, and none of the members of
the government had interpreted it in this way. If the interpretation had been
left to the people and their chosen representatives, even the members of the
Pakistan National Congress would not have objected to it. It was the clearly
religious connotations of the preamble that led the members of the cap to
believe that the limits would be decided by Islamic texts, and interpreted by
Islamic scholars. Mian Iftikharuddin was raising such an argument because he
was a leftist, and the only representative of the Left in the cap. To propound
the cause of the leftist interest group, Mian Iftikharuddin argued for a broad-
based understanding of the exercise of sovereignty clause, so that the cap,
which may include more members of the Left in the future, may have the final
authority to decide.
Mian Iftikharuddin’s understanding of the term “Islamic democracy” was
also broad based and attested to his revolutionary credentials. He continued his
speech noting that the real difference in Pakistan was not going to be between
43 Ibid., 46.
45 Ibid., 52.
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142 Bangash
the “Hindus” and “Muslims” but between the “Hindu have-nots” and the “Mus-
lim have-nots,” against the Hindu and Muslim upper and middle classes, and
therefore legislation should focus on eliminating economic and social dispari-
ties. He charged that the or was not going far enough, and that there were no
safeguards, for example, against people being forced or influenced to vote in a
certain way. Real Islamic democracy, Mian Iftikharuddin argued, existed when
people had complete freedom to vote whichever way they wanted.46 Although
Mian Iftikharuddin did not reject the Resolution, he wanted it to delineate re-
form that would usher in “real” democracy in Pakistan.
Sardar Abdul Rab Nishtar, a cabinet minister in the central government, also
dismissed the qualms of the opposition benches. He contended that declar-
ing that God was the sovereign of the whole universe and that His delegated
sovereignty should be exercised within limits saved the minorities from “the
tyranny of the majority.” “What a responsibility this declaration lays upon the
shoulders of the majority!” he exclaimed, noting that “It gives the minorities a
very great guarantee, very strong security, against the tyranny of the majority,
because the majority who happens to be in power will have to exercise this
authority as a sacred trust from one who is the Sovereign of the minorities and
of the majority.”47 But the minister overlooked the fact in trying to save people
from the tyranny of the majority, the state was being fashioned along the re-
ligion of the majority. Once the precepts of the majority religion become the
law and constitution, there is no need for any further “tyranny of the majority.”
He further claimed that the principle behind the resolution was the “brother-
hood of man over all the world,”48 despite the fact that the resolution clearly
distinguished between different religions and created the categories of major-
ity and minority.
Nishtar also explained away the fact that the preamble said that sovereignty
were to be delegated to the “state of Pakistan” rather than directly to the peo-
ple. He noted: “Islam believes in an organised existence—and, therefore, when
we say in this Resolution that the authority has been delegated to the State of
Pakistan through its people it means that the authority has been conferred
upon the people but is to be exercised by the people through their own organ-
ised will and in an organised manner.”49 Nishtar further explained how the
formulation “within the limits prescribed by Him” ensured that there shall be
no usurpation of power by any individual in Pakistan. He noted: “[This phrase]
46 Ibid., 55.
47 Ibid., 56.
48 Ibid.
49 Ibid., 57.
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obviates the possibility of any individual arrogating to himself power or au-

thority in Pakistan because one of the main limitations which has been laid
down in Islam with regard to constitution is this that the ruling authority in a
Muslim country cannot be a king, it cannot be a dictator.”50 Minister Nishtar
made these remarks at a time when almost all Muslim majority countries, ex-
cept Turkey, were ruled either by dictators or by kings. Such selective reading
of contemporary times, let alone history, was indeed novel.
Sir Zafrullah Khan, the Foreign Minister and an eminent jurist, further al-
layed the fears of the opposition benches about sovereignty being derived
from God and resting in the state through its people. He noted: “From the
Islamic point of view there can be no doubt that such authority or sovereignty
as Islam concedes to mankind, vests in the people and in the Quran it is the
people who are commanded to entrust that authority into the hands of those
who are in every respect fit to exercise it.”51 But even in this reassurance by an
acclaimed jurist, the devil remained in the detail: who will be the people “fit to
exercise” the sovereignty bestowed on them? This is the question the opposi-
tion benches were apprehensive about, and it remained unanswered in the
speeches of the treasury benches. What measures, if any, could limit future
assemblies from restricting the role of non-Muslims, or even of certain Muslim
denominations, from being denied the right to participate in the exercise of
the sovereignty delegated by God?52
As the debate continued on the or, further clarifications by the treasury
benches crystallized the thinking behind the Resolution and how it was go-
ing to affect the developing state and polity in Pakistan. Dr. Mahmud Hussain
interpreted the limits on sovereignty in moral terms, i.e., the prevention of evil
and the promotion of good. Therefore, he saw no problem in recognizing this
principle.53 But if the principle is understood in these terms, there may be no
state in the world without such limits, because no state promotes fraud, de-
ceit, and mischief as a matter of policy. The question remained therefore, what
these principles meant in real terms once they were enunciated.
50 Ibid., 59.
51 cap Debates, Vol. v, No.5, March 12, 1949, 71.
52 Sir Zafrullah Khan’s denomination, the Ahmadiyya Community, was declared non-
Muslim in Pakistan through a constitutional amendment in 1974. Further laws in the
1980’s made it a criminal offence for the Ahmadiyyas to call themselves Muslims, or even
act or pray like them. For details see, A. U. Qasmi, The Ahmadis and the Politics of Religious
Exclusion in Pakistan, London: Anthem Press, 2014.
53 Ibid., 86.
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144 Bangash
Despite the strong efforts of the treasury benches to allay the fears of the
opposition, it was clear that what was being proposed in the Resolution went
much further than what Dr. Hussain had articulated above. Dr. Omer Hayat
Khan, the Vice Chancellor of the Punjab University and a member of the cap,
clearly articulated that this state will be a new type of a government:
The people will have some power but they will not have all the power.
So much must be frankly said that certain things have to be resolved by
God and are in His own personal sphere. The remaining sphere has been
left open to the people to deal with. The principles of Islam and the laws
of Islam as laid down in the Quran are binding on the State. The people
or the State cannot change these principles or these laws. The State shall
have to enforce these principles and these laws as they stand, but there
is a vast field besides these principles and laws in which people will have
free play; they will have the whole entire power. So, Sir, this State that we
are envisaging will be a democracy of a limited form: it might be called
by the name of “theo-democracy,” that is democracy limited by the word
of God, but as the word “theo” is not in vogue so we call it by the name of
Islamic democracy.54
Here, for the first time, a member of the treasury benches clearly articulated
the limited scope of the government that the or was proposing. Islam is a
complete code of life, which leaves few topics on which there is no legislation.
Therefore, the powers of the government under the or would be extremely
limited in this theo-democracy. Moreover, it remained an open question
which topics were left under its remit, and how the different schools of Islamic
thought would harmonize their legislation under this dispensation.
By the end of the debate, the two groups were unable to accept any points
made by the other side, and remained deeply entrenched in their positions.
Wrapping up the debate, the Prime Minister, Liaquat Ali Khan, admitted that
the treasury benches had failed to allay the fears of the opposition.55 When all
the amendments and subsequently the original resolution were put to vote, the
house divided along religious lines, with all ten Hindu members present voting
against the resolution and for the amendments, and all twenty-one Muslim
members present voting for the resolution and against all the amendments.56
54 Ibid., 78.
55 Ibid., 94.
56 Ibid., 98–101.
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4 Conclusion
A Constituent Assembly is a very special legislature. Rather than creating laws

that deal with the day-to-day affairs of the state, it is tasked with formulating a
set of rules that are expected to remain on the books for a long time. Its sway
and effect are therefore much larger than those of the legislature. Further-
more, the work of the Constituent Assembly is usually not circumscribed by
previous laws, as it is there precisely to create such a framework. Elster noted
that “constituent assemblies are often more polarized than ordinary law mak-
ing bodies. They are not engaged in politics as usual, but oscillate between
what Bruce Ackerman calls ‘higher law-making’ and sheer appeal to force.”57
Although there was no direct appeal to force in the case of Pakistan, the “high-
er law-making” argument did become central in the week-long debate on the
or, between March 7 and 12, 1949.
The rule of law is a key prerequisite for economic and political development.
Without the rule of law, there can be no proper regulation, no enforcement of
contracts, and no accountability. Kant argued that laws need a certain degree
of universality: they should be (a) general, i.e., applicable to a large number of
people without discrimination, (b) abstract, i.e., not pertaining to one behav-
iour, (c) certain, i.e., not changing on a whim but lasting, and (d) justifiable, i.e.,
explainable in general discourse.58 Such laws need to be formulated by a legis-
lature that is sovereign, i.e., able to make laws and rules, and to enforce them.
In the case of Pakistan, the question of sovereignty—the ability to make
laws and regulations—became a contested notion almost immediately. The
debate on the or clearly showed that the new government of Pakistan was try-
ing to come to terms with the reality of being a modern nation state and at the
same time also wanting to be Islamic. Central to its attempt at being faithful to
Islamic principles was the question of sovereignty, which in classical Islamic
texts rested with God. To whom was this sovereignty to be delegated, what its
limits were, and how it was to be exercised, were the questions the Assembly
struggled to answer.
Classical Islamic thought is clear on the sovereignty of God, but there is some
discussion on the exercise of this sovereignty. Al-Ghannouchi tried to harmo-
nize the idea of God’s sovereignty with modern Western thought, n oting that
“there is no clergy in Islam, and Allah cannot be perceived directly, nor does
57 Jon Elster, “Arguing and Bargaining in Two Constituent Assemblies”, 2(2) Journal of Consti-
tutional Law (2000), 348.
58 Adapted from Stefan Voigt “Islam and the Institutions of a Free Society,” X(1) The Indepen-
dent Review (Summer 2005), 62.
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146 Bangash
He dwell in a human being or an institution which can speak for Him. What
the slogan ‘sovereignty belongs to God’ means is rule of law and government
by the people.”59 Although this explanation brings the role of the Constituent
Assembly to center stage, as the “delegated” authority by God, the question of
the limits prescribed by God in his sovereignty remains a contested feature. As
noted above, it was unclear what these limits were and how they were going
to be observed. For instance, what if the Constituent Assembly declared laws
X, Y, and Z as divinely ordained, but a later Assembly judged that not these
but rather A, B, and C were God’s laws? Since the legitimacy of the Assembly
emanated from God, as Al-Ghannouchi admitted, it would be impossible to
ascertain which laws derived from God and were sine qua non, and which were
man-made and amendable.
Furthermore, the argument that Islam does not have a clergy complicates
the matter rather than simplifies it. Knowing the law of God as enunciated in
the Quran and Sunnah and its application is a technical task. Not being spe-
cialists, members of the Constituent Assembly might not have known all the
laws and precepts ordained by God or the Sunnah of the prophet Mohammad.
Under this scenario, they had to defer to the ulema, the religious scholars who
have different interpretations of different sections of the Quran and Sunnah.
Which of these interpretations would then be considered valid, and why? This
theo-democracy that Omer Hayat Khan alluded to would not only depend on
the interpretation of the members of the Constituent Assembly but potential-
ly also on that of the ulema and of others outside the assembly. This created
other supra-constitutional bodies and people, undermining the constitution-
making process and weakening it. A newspaper article from the time of the
debates clearly signaled that under the or religious scholars would certainly
play a role. Dr. Basharat Ali wrote in the Jang newspaper:
According to the needs of the times, whatever laws will be made they
will be based on the thoughts discussed above. This means that the law-
makers would be versed in the Sharia of Islam, Islamic culture, and the
mood of Muslims, so that laws may reflect the demands of the times…
Our opinion is that in addition to the Constitution, we must depend on
the expertise of the ulema in other collective spheres too.60
59 R. Al- Ghannouchi, Conceptions of Secularity and Civil Society (London: Al-Markaz Al-
Magharibi le Al-buhuth wa Al-tarjama, 1999), 155.
60 Jang, March 19, 1949. Rough translation from Urdu by the author.
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Although the official discourse repeatedly repudiated the involvement of the

religious scholars in the affairs of the state, the public at large was expecting
the close involvement of the ulema in the formulation of the constitution of
Pakistan. Sris Chandra Chattopadhyaya, the leader of the Pakistan National
Congress party, in the closing arguments of the opposition, also echoed the
confusion regarding the interpretation of the limits prescribed by God. He
exclaimed:
What are those limits, who will interpret them? Dr. Qureshi or my re-
spected Maulana Shabbir Ahmad Usmani? In case of difference who will
interpret? Surely they are not the people. One day a Louis xiv may come
and say “I am the State, anointed by the Almighty” and thus paving the
way for [the] advent [of the] Divine Right of Kings afresh. Instead of State
being the voice of the people, it has been made an adjunct of religion.61
Chattopadhyaya then quoted from a publication of the Jamaat-e-Islami party

of Maulana Maududi, where it was clearly stated that Islam and democracy
were incompatible. He read from the publication at page 30:
The preceding statement makes it quite clear that Islam is not democracy;
for democracy is the name given to that particular form of Government in
which sovereignty ultimately rests with the people, in which legislation
depends both in its form and content on the force and direction of public
opinion and laws are modified and altered, to correspond to changes in
that opinion. If a particular legislation is desired by the mass of people
steps have to be taken to place it on the Statute Book, if they dislike any
law and demand its removal, it is forthwith expunged and ceases to have
any validity. There is no such thing in Islam, which, therefore, cannot be
called democracy in this sense of the term.62
The government simply brushed aside these objections, and the Prime Minis-
ter noted in his closing speech, “I know and let me tell my friend the Leader of
the Congress Party, I fully appreciate his feelings. I know how he feels. But at
the same time I would appeal to him to trust us, give us a chance to show that
what we are preaching, we are determined to practise.”63 Hence the or passed
without any alterations.
61 cap Debates, Vol. v, No.5, March 12, 1949, 90.

62 Quoted in ibid., 91.
63 Ibid., 98.
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148 Bangash
Among the members of the Constituent Assembly, only the Hindu mem-
bers voiced their opposition to the Resolution in the assembly. Muslim
members, including those who were lukewarm or non-supportive of the Reso-
lution, were largely quiet. The only member who later voiced her opposition
to the Resolution, was one of the two women members of the Constituent As-
sembly, Begum Jahanara Shahnawaz. She appears not to have been present
during the discussions of the or, but she later noted her resolute opposition:
We received the Objectives Resolution and I was very upset. How the
Court could interpret and adjudicate a resolution of this type, was some-
thing beyond one’s comprehension. Who had advised the Prime Minister
to have a preamble of this type? I could not understand how constitu-
tional lawyers like Zafrullah and Nishtar had agreed to it or helped to
frame it. To base a constitution on such a resolution when every word
would have to be legislated was something unthinkable.64
Shahnawaz was astonished that such a vaguely worded resolution was to serve
as the Grundnorm of Pakistan. How would the cap make clear laws based on
this preamble? She wondered where the final adjudicatory authority for law
making, for Muslim life, and for any conflicts that arose would lie.
The press widely applauded the or, and criticism was scant. The largest
newspaper in Pakistan, Dawn, which was also the unofficial newspaper of the
ruling Muslim League, welcomed the fact that the sovereignty of God had been
recognized in the resolution. Dawn opined:
One of the most glaring defects of modern democratic methods is that

an unscrupulous majority may ignore the ethical principles which should
govern the relations between man and man and exercise its power to the
detriment of certain sections of the population… However, if the State is
based on higher moral principles, this danger is eliminated… Islam there-
fore emphasises the fact that all authority is a sacred trust and must be
exercised within the limits prescribed by God. These limits are essentially
spiritual and ethical, making the proper exercise of authority an act of
worship.65
64 Jahanara Shahnawaz, Father and Daughter (Lahore: Nigarishat, 1971), 247.

65 Dawn, March 3, 1949.
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Not all non-Muslims opposed the or. The only non-Muslim in the Pakistan
cabinet, Mr. Jogendra Nath Mandal, Minister for Law and Labour, supported
the resolution and stated that “The Objectives Resolution was not the last
word… [and] that the Preamble of the Resolution was after all an expression
of the idealism that God is the fountain head of all power.”66 Mandal, however,
was conspicuously absent from the debate itself.
Only the left-leaning The Pakistan Times cautioned that problems could
arise unless certain articles of the or were clarified. Commenting on the prin-
ciples of democracy, freedom, equality, tolerance, and social justice, as enun-
ciated by Islam, its editorial noted: “It is not clear whether the principles of
democracy, freedom etc., shall be fully observed because all these principles
have been enunciated by Islam or whether some special brand of these prin-
ciples has yet to be evolved in accordance with some particular individual’s
enunciation of Islam. If it is the former, the formula is progressive and straight-
forward, if it is the latter, it might easily open the door to disruptionist, sec-
tarian controversies.”67 The same can be said about the limits prescribed by
God: if they are general principles of promoting good and shunning evil, then
almost all constitutions aim to provide for it, but if they are specific injunc-
tions, which are not clearly laid out or are not agreed upon, then laws emanat-
ing from them will be unclear and unstable. Another article signed with the
pseudonym M ufakkir (“thinker”) suggested several problems with the or:
The preamble mentions two sovereign authorities. On the one hand

it says that the “sovereignty over the entire universe belongs to God
Almighty.” On the other hand it mentions the Constituent Assembly’s
resolve to frame a constitution for the “sovereign state of Pakistan.” If it
were just a question of literary repetition one could ignore the slip. But
those who appreciate the significance of the conception of sovereignty
in law will agree that there cannot be two legal sovereigns in one system
of law.68
It appears, therefore, that there was some concern about the enforceability of
the Resolution, given that its reference to the sovereignty of God could mean
a number of things in legal and practical terms, but people who questioned it
were so careful that they did not even want to be identified.
66 Civil and Military Gazette, March 22, 1949.

67 The Pakistan Times, March 4, 1949.
68 Civil and Military Gazette, March 20, 1949.
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150 Bangash
Couplet by Rais Amrohvi. Jang, March 6, 1949.
Approximate English translation:
God’s Government is the destiny of the Nation

This is the way for the welfare of the people
If God’s Government is not realized now
Then, friends, we are doomed.
Most other Islamic constitutions of the time operated within the framework
of Sharia, but the or was the first to be inspired by both Islamic and Western
thought, and therefore could be considered the modern, even modernist, in-
terpretation of Islamic law. But although in the or sovereignty is delegated
to the people through the state, the question remains regarding the limits
placed upon it by God. Who would define, enforce, and adjudicate such limits
remained a question in 1949, as it does to this day. If, for example, the ulema
prescribes these limits, it means that they hold extra-constitutional authority,
which undermines the work and role of the parliament. If it is not clear who
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holds the power to delineate these limits, the constitution becomes a weak,
vacillating, and unenforceable document, making laws unstable and growth
difficult. How sovereignty is understood in the modern nation state remains
a critical issue not only for Pakistan, but for the wider Muslim world as well.
Cartoon showing Pakistan leading the world from the “Darkness of Materialism,”
on a road paved by the Objectives Resolution, toward “Peace and Happiness.” Jang,
March 12, 1949.
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7 (2019) 152-183
brill.com/jlrsx
Religion, Sexual Minorities, and the Rule of

Law in Russia
Mikhail Antonov
Associate Professor, National Research University Higher School of
Economics (St. Petersburg, Russia), Law Faculty, Department of
Theory and History of Law and State
mantonov@hse.ru
Abstract
This paper analyzes the cultural constraints imposed in the Russian legal system by
the prevailing social philosophy, which is characterized by a significant degree of reli-
gious conservatism and communitarianism. This conservatism is predictably opposed
to sexual minorities and to those who want to defend or justify them. The author con-
cludes that this philosophy strongly affects decision-making in Russian courts, and can
sometimes overrule the provisions of the Russian Constitution and the laws that for-
mally grant protection to sexual minorities. In turn, this conservative social philosophy
and communitarian morality are based on religious patterns that are still shaping the
mindsets and attitudes of Russians. These attitudes cannot be ignored by judges and
other actors in the Russian legal system, who to some extent are subject to the gen-
eral perception of what is just, acceptable, and reasonable in society, and are factually
bound by this perception.
Keywords
religion – social philosophy – religious feelings – sexual minorities – justice – courts –

case law – religious freedoms – human rights
0004285750.INDD 252 204331 3/4/2019 12:40:58 PM

Religion, Sexual Minorities, And The Rule Of Law In Russia 253
1 Introduction1
The Russian Constitution resolutely prohibits any discrimination (Art.19), in-

cluding based on sexual orientation, and it solemnly proclaims that Russia is a
secular state where religion and the state are separate (Art.14). After the adop-
tion of the Constitution, in 1993, however, certain anti-liberal developments
took place both in Russian society and in the political establishment. For ex-
ample, following the 2012 Pussy Riot case,2 the Russian parliament adopted
a series of laws in 2013 that set out to protect the feelings of religious believ-
ers. This amounts to statutory protection of believers against performances,
statements, or any other actions that could insult their religious creeds and
predispositions. The consequence is that non-believers and believers of “non-
traditional” confessions must accept the religious dogmas of the prevailing
confessions, in this case, first and foremost of Russian Orthodox Church (roc),
as a part of the legal order of their country.3
These amendments of 2013 brought more indeterminacy to the Russian le-
gal order, as it turned out that the religious feelings and creeds of quite a large
number of people do not fit the so-called traditional values of the country,
and the official secularity of the state was also called into question. Only the
main religious denominations (including the roc, the mainstream Muslim
1 The research for this paper was carried out with the help of a grant from the National
Research University Higher School of Economics, St. Petersburg, Grant No. 18–ip–01.
The author is grateful to the participants of the international conference “Rule of Law—
Religious Perspectives” (Bar Ilan, 20–22 November 2016), where the material in this chapter
was first presented, for their stimulating discussion, and to the anonymous reviewers for their
valuable comments. Special thanks to Professor Jerry Pankhurst, from Wittenberg University,
in the us, for his insightful suggestions on the initial drafts of this paper.
2 Prigovor Khoroshevskogo raionnogo suda Moskvy (17 August 2012) po delu No.1-170/12 po obvine-
niiu Tolokonnikovoi N.A., Alekhinoi M.V., Samutsevitch E.S. v sovershenii prestupleniia, pre-
dusmotrennogo chast’iu 2 stat’i 213 uk rf. Retrieved 2 Sept. 2018, <http://cудeбныepeшeния.
pф/bsr/case/3738990>. For a short analysis of the argument behind the verdict, see Mikhail
Antonov, “Beyond Formalism: Sociological Argumentation in the ‘Pussy Riot’ Case”, 1 Revista
Critica de Derecho Canonico Pluriconfesional (2014), 15–25.
3 One controversial case that was recently heard by a justice of the peace in the Stavropol Krai
concerned the right of atheists to claim that God did not exist. In 2016, a Russian blogger
named Viktor Krasnov was indicted for insulting the feelings of religious believers after post-
ing on the Russian social network VKontakte a claim that there was no God and that the Bible
was nothing but a book of Jewish fairytales. The case was closed in 2017 because of the statute
of limitations, but it prompted heated discussions about the rights of atheists to publicly ex-
press their opinion. See “Chuvstva veruiushchikh mogut sverit’ s Konstitutsiei”, Kommersant.
ru (14 Mar 2006). Retrieved 2 Sept. 2018, <https://www.kommersant.ru/doc/2937009>.
0004285750.INDD 253 204331 3/4/2019 12:40:58 PM

254 Antonov
and J ewish congregations, Catholics, and some other so-called historical Chris-
tian denominations) profited from these amendments, while other religious
groups suffered not only from being “non-traditional,” but also from differing
from the traditional Russian mindset, which therefore put them at risk of being
classified as “extremist.” A controversial recent case involving the banning of
the Jehovah’s Witnesses as an extremist organization by the Russian Supreme
Court4 illustrates this discrimination. The main argument for shutting down
the Jehovah’s Witnesses in Russia was their alleged extremism, understood as
their claim to being the holders of supreme religious truth and of knowing the
only path to salvation, which is theoretically applicable to almost any religious
denomination, but does not fit the conceptions of the roc.
These amendments brought into sharp relief the normative conflict be-
tween two groups of values: the traditional (conservative) values that largely
promote the creeds of historical religious denominations, and the liberal val-
ues that prohibit limitations of rights based on discrimination on grounds
such as sexual orientation. Because of their fundamental religious concep-
tions, the traditional denominations (Russian Orthodox Christianity, Islam,
Judaism, and Buddhism, which constitute “an integral part of the historical
heritage of the peoples of Russia” according to the Preamble to the 1997 Law on
Freedom of Conscience and Religious Associations),5 are hostile toward sexual
minorities. As a result, there are frequently open or latent conflicts between
believers and sexual minorities, especially in such sensitive areas as education,
adoption, and marriage.6 The amendments of 2013 tipped the scales in favor of
4 The ruling that banned the Jehovah’s Witnesses in Russia was adopted by the rf Supreme
Court on 20 April 2017, in case No. akpi 17–238 (the full text in Russian is available at <http://
www.jw-org.info/2017/05/tekst-reshenija-verhovnogo-suda-o-likvidacii-Svidetelej-Iegovy
.html>. Retrieved 2 Sep 2018). This ruling was upheld by the Appellate Collegium of the rf
Supreme Court on 17 Jul 2017 (retrieved 2 Sep 2018, http://vsrf.ru/stor_pdf.php?id=1564706),
and on 16 Aug 2017, the rf Ministry of Justice placed the Jehovah’s Witnesses on its list of
extremist organizations.
5 Russian translation, retrieved 2 Sep 2018: http://www2.stetson.edu/~psteeves/relnews/
freedomofconscienceeng.html. See also Lauren B. Homer and W. Cole Durham, Jr., “Russia’s
1997 Law on Freedom of Conscience and Religious Associations: An Analytical Appraisal”, 12
Emory International Law Review (1998), 101–246. The law of 1997 is rather retrograde in that it
worsened the position of minority religions compared with the regulations in the rsfsr Law
on Freedom of Religious Creeds.
6 According to polls conducted in 2017 by the Pew Research Center, 85% of Russians consider
homosexuality morally wrong. See “Religious Belief and National Belonging in Central and
Eastern Europe”, pewforum.org (10 May 2017). Retrieved 2 Sep 2018, <http://www.pewforum
.org/2017/05/10/religious-belief-and-national-belonging-in-central-and-eastern-europe/
?utm_source=Pew+Research+Center&utm_campaign=efff8a5e05-EMAIL_CAMPAIGN
_2017_05_10&utm_medium=email&utm_term=0_3e953b9b70-efff8a5e05-400288249>.
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traditional denominations, as religious feelings, stemming from “traditional”

religious creeds and beliefs, became a legitimate object of statutory protection.
This added to the complexity involved in finding a judicial balance between
these conservative values and liberal values, including freedom and equality,
and emphasized the question of the justification of the judicial choice between
different values and principles. Over the last few years, case law in Russia has
clearly tended to support conservative values, marking a departure from the
liberal principles enshrined in the Constitution of 1993.
Some observers claim that court decisions in Russia are politically prede-
termined and that judges have no choice but to follow the line of the ruling
party.7 This might be at least partly true, but we are unaware of any empiri-
cal data confirming an overwhelming political bias in Russian court deci-
sions. Perhaps such a bias can be found in some high-profile cases, but these
relatively rare cases do not suffice to draw conclusions about the entire court
system. The question concerning the rule of law in Russia is different. There
appear to be some high-profile, politically motivated cases, but these are rela-
tively few, whereas in ordinary cases the judges are not bound by any political
directives.8 Although it cannot be denied that judges might have pragmatically
motivated inclinations to abide by state ideologies and policies, and to decide
cases accordingly, this is a natural strategy for professional survival and success
in authoritarian countries. At the same time, given the influence of tradition
and religion on culture, it should come as no surprise that many judges are in
favor of the doctrines of the main religious denominations in Russia, and are
opposed to sexual minorities. Not insignificant is also the influence of public
opinion, which is for the most part conservative and predictably exerts a rather
strong influence on judges. This may be the reason why the Russian courts do
not support sexual or religious minorities, which has become one of the main
One can reasonably expect a similar percentage of antigay attitudes among Russian judges.
The government does not necessarily need to inspire Russian judges’ repressive attitudes
toward sexual minorities, as these attitudes are already programmed by the prevailing con-
servative culture.
7 Authors claiming that political machinations are behind certain court decisions usually sup-
port their finding not with facts but rather with guesswork. See, for example, John B. D
unlop,
“The Russian Orthodox Church as an ‘Empire-Saving Institution’”, in Michael Bourdeaux
(ed.), The Politics of Religion in Russia and the New States of Eurasia (1995), 15–40.
8 In her recent book, Hendley correctly noted that politicized cases in Russian law “actually
amount to a drop in the bucket,” and argues that “careful observation of the routine behavior
of individuals, firms, and institutions reveal more about the role of law in Russian life than
do sensational cases.” See Kathryn Hendley, Everyday Law in Russia (2017), 2.
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256 Antonov
points of controversy in relations between Russia and the West concerning hu-
man rights.9
In this paper, we examine the dichotomy between formal legal texts (the
Constitution, ratified treaties, and other legal acts that establish liberal and
antidiscrimination rules and principles) and the factual situation in which the
state owes not a small part of its legitimacy to adherence to so-called tradi-
tional values and to the support of the roc and other conservative forces.10
For a variety of historical reasons, these traditional values in Russia are, for
the most part, based on the religious patterns of the main religious denomi-
nations, which are, by definition, conservative in sexual matters. In recent
years the government has readily resorted to the traditional values slogan in its
anti-Western and anti-globalist rhetoric, reinforcing its support from the con-
servatively minded masses.11 In turn, this predictably leads to discrepancies
and conflicts with supranational institutions, in particular with the European
Court of Human Rights (ECtHR).12 In these conflicts, the Russian state plays
the constitutional identity card, which, in the case of lgbt rights, means that
9 See, for example, Alexander Kondakov, “Heteronormativity of the Russian Legal Dis-
course: The Silencing, Lack, and Absence of Homosexual Subjects in Law and Policies”,
4(1) Oñati Journal of Emergent Socio-Legal Studies (2010), 4–23; Aidar Sultanov, Zashchita
svobody sovesti cherez prizmu postanovlenii Evropeiskogo suda po pravam cheloveka (2013).
10 This is the case not only in Russia, and similar tendencies can be seen in other countries.
For debates about the influence of religious beliefs on the decision making of us judges,
see Scott C. Idleman, “The Role of Religious Values in Judicial Decision Making”, 68(2)
Indiana Law Journal (1993), 433–487; Wendell L. Griffen, “The Case for Religious Values in
Judicial Decision-Making”, 81 Marquette Law Review (1998), 513–521; Gregory C. Sisk et al.,
“Searching for the Soul of Judicial Decision Making: An Empirical Study of Religious
Freedom Decisions”, 65 Ohio State Law Journal (2004), 421–614; Stephen M. Feldman,
“Empiricism, Religion, and Judicial Decision-making”, 15 William & Mary Bill of Rights
Journal (2006), 43–57; Brian H. Bornstein and Monica K. Miller, “Does a Judge’s Religion
Influence Decision Making?”, Court Review: The Journal of the American Judges Associa-
tion (2009), 112–115; Kermit V. Lipez, “Is There a Place for Religion in Judicial Decision-
Making?”, 31(1) Touro Law Review (2015), 133–148.
11 On the role of traditional values in human rights narratives in general, see Jacob W.F.
Sundberg, “Human Rights and Traditional Values”, in Peter Wahlgren (ed.) Human Rights:
Their Limitations and Proliferation (2010), 125–154. For an analysis of Russian political
objectives in protecting traditional values, see, for example, Melissa Hooper, “Russia’s
‘Traditional Values’ Leadership”, humanrightsfirst.org (1 June 2016). Retrieved 2 Sep 2018,
<http://www.humanrightsfirst.org/sites/default/files/Melisssa%20Report.pdf>.
12 On the role of the roc in the evolution of conservative and anti-liberal polemics against
liberal freedoms and against the ECtHR, see Kristina Stoeckl, The Russian Orthodox
Church and Human Rights (2014).
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these rights are trumped by concern for protecting the prevailing communitar-
ian culture. This communitarianism, in turn, is historically rooted in religious
traditions and culture, which inevitably leads to a confrontation between the
domestic conservative culture and the liberal culture transplanted from the
West and embodied in the rf Constitution.
2 Contestation of Rights through Religion
The balance between the societal values rooted in religious traditions and the
liberal values enshrined in the laws that protect minorities against the arbi-
trary rule of the majority can serve as a litmus test for determining the ex-
tent to which there is rule of law in Russia.13 Can minorities claim full judicial
protection of their rights guaranteed by the Constitution and international
treaties despite these rights contravening established patterns rooted in the
prevailing religious paradigms or in so-called traditional values? Court prac-
tice in Russia, including the case law of the rf Constitutional Court, is rather
ambiguous about this question and suggests a negative answer.
Similar problems exist in other countries with a relatively strong influence
of religious traditions on social life and mindsets. Although adhering to inter-
national standards for the protection of minorities and having ratified the cor-
responding treaties, quite a few countries may in reality be unwilling to extend
the full scope of such protection to some minorities that are stigmatized by
public opinion. In democratic countries, guaranteeing rights for stigmatized
minorities is a practical choice for governments because it could undermine
their legitimacy and result in loss of popular support, and consequently of
the elections. It comes as no surprise that traditionalist narratives are gaining
popularity in political forums in Western societies, and can be used as trump
cards in political strategy. There is ample discussion about the rise of popu-
lism in Europe, the us, and elsewhere, which has at times prompted liberal
parties to accept anti-liberal policies as a part of their election strategies. This
populist strategy is relevant not only for democratic countries, where outspo-
ken support of minorities can lead to lost elections, but also for authoritarian
13 For some instructive observations by one of the leading Russian sociologists, see Igor Kon,
“Homophobia as a Litmus Test of Russian Democracy”, 48(2) Sociological Research (2009),
43–64. In a broader perspective, one can consider this issue in light of different strat-
egies of Russian modernization. See, for example, Marianna Muravieva, “Traditsionnye
tsennosti i sovremennye sem’i: pravovye podkhody k traditsii i modernu v sovremennoi
Rossii”, 12(4) Zhurnal issledovanii sotsial’noi politiki (2014), 625–640.
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258 Antonov
countries whose governments are, to a certain extent, dependent upon various

conservative groups (the army, the clergy, etc.).
In Hungary, Poland, and elsewhere, as a result of the conservative Catholic
morality prevailing in these countries, these narratives are progressively gain-
ing the upper hand and challenging the established European consensus on
sexual non-discrimination. The same is happening in Russia, where the con-
servative Orthodox culture actively supports antigay attitudes and opposes
any attempt to grant more rights to sexual minorities, or even to exercise the
rights that are established in statutory law.14 The statutory texts are insufficient
for an adequate assessment of the nuances and limits of this balance, because
the issue of the accommodation and protection of religious feelings concerns
underlying social conventions, which have been historically formed and may
hold sway over the mindsets of not only ordinary people but also of legislators
and judges.
To understand these conventions, it is helpful to analyze the part of Russian
law that regulates the rights of sexual minorities from the standpoint of the
prevailing social philosophy in Russia. This can partially unveil the axiological
background (i.e., the system of societal values) underlying the legal regulation
of sexual minority rights in the Russian Federation. The prevailing philosophy
is understood as that which is promoted in the official media and in the dis-
course of political leaders,15 and which, according to sociological surveys, is
shared by the majority of the population.16 (It is a separate question whether
14 There have been no sociological surveys among the Russian judiciary about their atti-
tude toward different religions, and one can hardly expect judges to be straightforward
on this point. Formally, state and religion are separate in Russia, and judges must render
their decisions based strictly on the law, excluding any subjectivity and prejudice. But the
facts are different. The Orthodox communitarian culture finds many proponents among
the Russian judiciary and inspires in them a repressive approach to sexual minorities.
For example, Constitutional Court Justice Nikolai Bondar’ wrote in 2013 that “the Russian
Constitution contains a sort of genetic (sociocultural) code of the multinational people
of Russia,” and that the lgbt culture does not fit this code (Nikolai Bondar’, “Bukva i
dukh rossiiskoi Konstitutsii: 20-letnii opyt garmonizatsii v svete konstitutsionnogo pra-
vosudiia”, 11 Zhurnal rossiiskogo prava (2013), 5–17, at 9). For elaborations on this point by
another rf Constitutional Court Justice, see Mikhail Kleandrov, “Mozhet li sud’ia byt’ ve-
ruiushchim?”, 4(12) Pravosudie v Vostochnoi Sibiri (2003). On the legalist and conservative
values and attitudes of Russian judges, see Vadim Volkov and Arina Dmitrieva, “Rossiiskie
sud’i kak professional’naia gruppa: tsennosti i normy”, in Vadim Volkov (ed.), Kak sud’i
prinimaiut resheniia: empiricheskie issledovaniia prava (2012), 128–155.
15 A short analysis of the structure of this discourse is provided in Michael Urban, Cultures
of Power in Post-Communist Russia: An Analysis of Elite Political Discourse (2010).
16 Sociological surveys seem to confirm that the homophobic policy of the authorities is in
line with the popular mood. According to polls by the Levada Center, 77% of Russians
supported the so-called gay propaganda law (which has a wide scope of regulation)
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this philosophy is shared because it is officially promoted or it is officially pro-

moted because it is supported by the masses17—we do not discuss this ques-
tion here.)
After the Pussy Riot case of 2012, laws were enacted the following year es-
tablishing criminal liability for anyone insulting the feelings of believers and
promoting lgbt ideology, which resulted in an indirect limitation of basic con-
stitutional freedoms (primarily the freedoms of conscience and of expression),
also calling into question the principle of equality before the law.18 This has
given rise to debates in the Russian scholarly literature on the limits of moral
regulation and the interplay between religion and law. Later amendments con-
firm this tendency, especially the so-called Yarovaia package of amendments
in 2016,19 which drew a distinction between “normal” religious cults and those
“non-traditional” religious practices that potentially lead to the propagation of
terrorist ideologies. Below we examine briefly these developments, revealing
their philosophical and historical background.
3 Traditional Values vs. Legal Rules in Court
Historically, traditions in Russia, at least concerning issues such as family,

sexuality, and gender, have been formed under the strong influence of the
Russian Orthodox Church,20 certainly as far as the Christian population is
of March 2015, as opposed to 67% in February 2013. See “Nevidimoe bolshinstvo”,

levada.ru (5 May 2015). Retrieved 2 Sep 2018, <http://www.levada.ru/15-05-2015/
nevidimoe-menshinstvo-k-probleme-gomofobii-v-rossii>.
17 For an instructive sociological explanation of how xenophobia in Russia is used by differ-
ent groups to promote the philosophy of solidarity, see Vladimir Mukomel’, “Ksenofobiia
kak osnova solidarnosti”, 3–4 Vestnik obshchestvennogo mneniia (2013), 63–69.
18 See, for example, Alexander Kondakov, “Same-Sex Marriages Inside the Closet: Decon-
struction of Subjects of Gay and Lesbian Discourses in Russia”, 1 Oñati Socio-Legal Series
(2011). Retrieved 2 Sep 2018, <http://ssrn.com/abstract=1737357>.
19 Federal Law No. 374-fz (6 Jul 2016) and Federal Law No.375-fz (6 Jul 2016) established new
anti-terrorism and anti-extremism measures. In particular, these laws treat as “extremist”
and prohibit missionary activities (sermons, proselytism, etc.) that might undermine tra-
ditional family values or prompt citizens to disobey the statutory law. For an overview, see
“Overview of the Package of Changes into a Number of Laws of the Russian Federation
Designed to Provide for Additional Measures to Counteract Terrorism”, International Cen-
ter for Not-for-Profit Law (21 Jul 2016), available at <http://www.icnl.org/research/library/
files/Russia/Yarovaya.pdf>.
20 The same can be said about second most important denomination in Russia, Islam, which
is the main religion in the Caucasus and in the Volga region, where it has had a significant
influence on local cultures.
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260 Antonov
concerned.21 This influence is reflected, for example, in the Russian medieval

collection of customary guidelines called the Domostroi (Household), where
family issues are dealt with from a religious standpoint, although this religi-
osity differed markedly from canonical Russian Orthodox Christianity.22 It is
also reflected in later texts containing ethical and legal (backed by organized
coercion) prescriptions of appropriate behavior. Gender roles and patterns of
sexual behavior were prescribed in an imperative manner, with zero tolerance
toward non-traditional sexual orientations, a practice that has repercussions
to this day.23
The westernization project undertaken by Peter the Great in the 18th cen-
tury sought, among others, to westernize Russian traditionalist culture. This
was, perhaps, one of the rationales for Peter’s reforming the Orthodox Church
in 1721, when the Church became one of the government ministries (the Holy
Synod), headed by the Emperor.24 But if this great Russian reformer succeeded
in changing the Russian mentality, it was only for the highest strata of Russian
society, whereas the majority of the population (the peasantry, the clergy, the
lower gentry, merchants) maintained their behavioral standards and mental
outlooks, and often opposed the westernized morality and law imposed by the
upper classes. Many Russian historians and philosophers regard the 1917 Revo-
lution as the result of the clash between the Western values propagated by the
highest classes and the traditionalist values imbued with evident religious con-
notations that were supported by the middle and lower classes.25
After the 1917 Revolution, there was little substantial change in the official
attitude toward non-traditional sexuality and gender in the long term.26 The
21 According to polls conducted in 2017 by the Pew Research Center, 71% of Russians con-
sider themselves Orthodox Christians, 10% Muslims, and 4% belong to other religious
denominations. See “Religious Belief and National Belonging in Central and Eastern
Europe”, op. cit. note 7.
22 Carolyn Pouncy, The Domostroi: Rules for Russian Households in the Time of Ivan the Ter-
rible (1994).
23 Peter Barta, Gender and Sexuality in Russian Civilization (2001).
24 James Cracraft, The Church Reform of Peter the Great (1971).
25 The most comprehensive interpretation of the Revolution from this point of view can be
found in the work of Nicolas Berdyaev, The Origin of Russian Communism, translated by
R.M. French (1960).
26 The unfortunate experiments with marriage and family construction in the first years of
Soviet Russia are worth a brief mention here (Lynn D. Wardle, “The ‘Withering Away’ of
Marriage: Some Lessons from the Bolshevik Family Law Reforms in Russia, 1917–1926”, 2
The Georgetown Journal of Law and Public Policy (2004), 469–521), but they were aban-
doned in the mid-1920s and had no significant influence on later Soviet family policies.
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Soviets banned feminism from public discourse and persecuted homosexuals,

imposing, for example, criminal liability on homosexual intercourse. Today,
homosexuality has become a political rallying cry for conservatives in Russia,27
who claim that the country must be saved from the “decadent West” (a figure
of speech widely utilized also in Soviet propaganda from the middle of the
20th century, and earlier by the Slavophiles in the 19th century), which alleg-
edly promotes a perverted form of sexual morality under the guise of liberal-
ism and human rights.28
The Russian Constitution of 1993 guarantees human rights, including free-
dom of conscience, expression, and assembly. These rights and freedoms are
the same as those set forth in the European Convention for the Protection of
Human Rights and Fundamental Freedoms (echr) and in the constitutions
of other European countries. But the interpretation and implementation of
these rights and freedoms in Russia differs significantly from how they are in-
terpreted and implemented in Western Europe. Russian political leaders have
constantly stressed that Russia is not prepared to recognize any active rights
or freedoms for lgbt individuals, one of those rare issues on which both the
ruling party and opposition liberal parties take the same stance.
Although formally sexual minorities have passive rights (in the sense of
the right to be tolerated),29 exercising these rights is considered amoral by
the standards of communitarian religious morality. From the vantage point of
tradition (be it Russian Orthodox, Muslim, or Soviet) or of “authentic family
values,” such rights or freedoms are inadmissible and even intolerable. At the
same time, Russia must honor its international obligations and therefore must
tolerate minorities. This partly explains why the legal regulation of the lgbt
27 The common conservative logic in Russian political discourse equates liberalism with
all-permissiveness (a pejorative term for tolerance), which, according to this logic, pre-
supposes freedom from moral and religious constraints and serves as justification of ho-
mosexuality and other “perversions.” An example of this logic can be found in a recent
speech by Chief Justice Valerii Zorkin, “Spravedlivyi miroporiadok: sovremennye podk-
hody”, 30 Nov 2017, Juridical Forum of the brics countries, Moscow, available at <http://
www.ksrf.ru/ru/News/Speech/Pages/ViewItem.aspx?ParamId=83>.
28 Olga Malinova, “Russia and ‘The West’ in the Twentieth Century: A Binary Model of Rus-
sian Culture and Transformations of the Discourse on Collective Identity”, in Reinhard
Krumm et al. (eds.), Constructing Identities in Europe: German and Russian Perspectives
(2012), 63–82.
29 In addition to the constitutional principle of non-discrimination, homosexuality was de-
criminalized in 1993 (pursuant to Law No.4901-1 of 29 Apr 1993), which means that it is not
punishable. Before 1993, individuals engaging in homosexual acts faced up to seven years
in prison under Art. 121 of the rsfsr Criminal Code.
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262 Antonov
community’s rights in Russia is passive, meaning that no active rights are ex-
plicitly recognized for sexual minorities in case law (e.g., the right to gay-pride
parades as an element of the freedom of expression for the lgbt community),
even if no formal discrimination is imposed on them in statutory or constitu-
tional law. This means that lgbt culture is merely tolerated but not protected,
and no allowance is legally granted to it.
This stratagem of the Russian authorities means to balance Western moral
and legal standards to which Russia has subscribed through numerous inter-
national declarations and conventions with the prevailing sense of what is just
and normal in Russian society from the standpoint of the majority. Russian at-
titudes toward minorities significantly differ from what is considered just and
normal in Western democracies. In particular, Russians in general are less tol-
erant toward the lgbt community than are residents of Western countries,30
which unsurprisingly also affects judicial practice.
This dialectic of passive/active regulation explains why the Russian federal
statutory law does not de jure prohibit “homosexual propaganda” or homo-
sexuality (lesbianism and other non-traditional sexual orientations) directly,
although this prohibition works de facto, given the broad interpretation of the
terms “non-traditional sexual relations” and “family values” in case law. In this
normative ambiguity, other mechanisms of social control, primarily religion
and traditional morality, are at work, shaping the attitudes of both ordinary
people and legal actors toward sexual minorities. It is not surprising that the
teachings of the main religious denominations in Russia (Orthodoxy, Islam,
Judaism, and Buddhism) and the morality that is historically based on their
dogmas have a negative attitude toward sexual minorities. References to tra-
ditional, national, and authentic values can easily become decisive factors in
the adjudication process, while statutory provisions are silent and can be inter-
preted as tacitly prohibiting behavioral patterns that are not directly allowed.31
30 According to a survey conducted by the Pew Research Center in June 2013: “The Global
Divide on Homosexuality: Greater Acceptance in More Secular and Affluent Countries”
(4 Jun 2013), available at <http://www.pewglobal.org/2013/06/04/the-global-divide-on
-homosexuality/>. Similar findings were reported in research conducted in 2014 by
two Russian sociologists: Margarita Fabrikant and Vladimir Magun, “Semeinye tsen-
nosti rossiian i evropeitsev” Demoskop (6–19 Oct 2014), available at <http://demoscope.
ru/weekly/2014/0613/demoscope613.pdf>. The increase in tolerance, however, has not
changed the balance of attitudes in Russian public opinion to date, and more recent polls
have shown that 83% of Russians consider gay sex reprehensible. See “83 percent of Russians
think gay people are reprehensible”, pinknews.co.uk (11 Jan 2018), <https://www.pinknews
.co.uk/2018/01/11/83-percent-of-russians-think-gay-people-are-reprehensible/>.
31 Sergey Taskov, “Razresheno vse, chto ne zapreshcheno zakonom: pravovye i nravstvennye
aspekty”, 11 Rossiiskaia yustitsiia (2014), 50–51.
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In the absence of explicit legislative rules, the judiciary has gradually coined
an implicit rule that is contrary to the general principle of antidiscrimination:
public performances, demonstrations, and mass actions that touch on the is-
sues of gender and sexuality are tolerated only if they do not contravene the
established value standards.32 This injects a measure of equivocality into the
Russian legal system, because this case law is at odds with the Constitution in
at least two ways. First, according to the prevalent legal doctrine and to consti-
tutional law (Art.120 of the Constitution), the task of judges is to apply rules,
but never to create them. This means that courts have no rule-making power:
in attempting to establish such power, the judiciary would be contravening the
constitutional principle of the separation of powers (Arts.10 and 11 of the Con-
stitution). Second, formally constitutionals law maintains a favorable attitude
toward various minorities, as it enunciates the same antidiscriminatory prin-
ciples (Art.19 of the Constitution) that are common in Western constitutions.33
At play here is not so much positive (in the sense of constitutional and
statutory) law, but rather the informal constraints and regulations stemming
from the societal environment and based on social conventions. In Russia, as
in other countries where religion plays a significant role in the social sphere,
these conventions are fundamentally conservative, banning any attempts to
justify behavior considered to deviate from established sexual and other mod-
els from the public sphere. Considering the judicial function from a sociologi-
cal standpoint, it is reasonable to argue that, in their routine work, judges tend
to uphold and reinforce these underlying conventions—lest they risk facing
social pressure.34 Given the religious and traditionalist background of these
conventions, such social control results in discrimination against minorities in
ways that are at times contrary to constitutional and international law.
32 This is one of the main ideas of anti-extremism legislation in Russia and of how it is
enforced by the courts, as summed up in Decree No. 11 of the Russian Supreme Court
Plenum “On judicial practice in criminal cases having extremist character” of 28 Jun 2011.
33 These arguments have been reiterated by lgbt activists in Russia but are ignored by the
Russian courts. See Alexander Kondakov, “Resisting the Silence: The Use of Tolerance and
Equality Arguments by Gay and Lesbian Activist Groups in Russia”, 3 Canadian Journal of
Law and Society (2013), 403–424.
34 Kathryn Hendley, Peter Murrell, and Randi Ryterman, “Law Works in Russia: The Role of
Legal Institutions in the Transactions of Russian Enterprises”, in Peter Murrell (ed.), As-
sessing the Value of Law in Transition Economies (University of Michigan Press, Ann Arbor,
mi, 2001), 56–93; Arina Dzmitryieva, “How the Law Really Works: The New Sociology of
Law in Russia”, 13(2) Economic Sociology (2012), 13–20. The law works through unofficial
channels not only in Russia but in “classical democracies” as well. See Richard Posner,
How Judges Think (2008).
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264 Antonov
4 The Statutory Law Framework
There are no explicitly stated laws or directives concerning the status of lgbt
people in Russia, and legal regulation in this field has a passive character. Stat-
utory law is simply silent on the rights of the lgbt community, which does not
mean that there is no legal regulation at all. On one hand, there are some statu-
tory rules that do not directly restrict sexual minorities, but which, in practice,
negatively shape the limits of lgbt rights. On the other hand, legal regulation
everywhere is based not only on statutory texts, but also on systems35 of im-
plicit standards and patterns of normal behavior in society. This is true also
for lgbt people in Russia: factual limits of their statutory rights are formed by
social attitudes.36 This fact is gradually transformed into normativity (what the
German legal scholar, Georg Jellinek, called “the normative force of the factic-
ity”), providing a kind of “soft law” that is not codified but nevertheless influ-
ences both political and judicial decision making.37 In Russian legalese, this
system of regulation is referred to as “family values” or “traditional values,” and
in law-enforcement practice it may be placed even above constitutional law,
which may prescribe rules contrary to the tradition or custom of family life.38
In this aspect, the living law occasionally prevails over the law in books, with
the approval of the political authorities and the popular majority, but with the
disapproval of international organizations or supranational courts.
Russian law contains two statutory rules that provide a powerful constraint
on the rights of sexual minorities to declare their sexual orientation, to pro-
vide argumentation for this orientation, and to foster public discussions on
this topic. The first one usually serves as the normative justification for the
prohibition of gay-pride parades and other public lgbt actions; the second
35 The term “system,” in the plural, is more adequate here because each social group can
have, and in reality has, its own ethics. In society, regulatory system is a conglomerate of
many ethical systems.
36 For an excellent analysis of public opinion on homosexuality in Russia, see Alexander
Kondakov, “Gomoseksual’nost’ i obschestvennoe mnenie v Rossii: ot negativnykh otsenok
do bezrazlichiia”, Demoskop Weekly (2013), 565–566, available at <http://demoscope.ru/
weekly/2013/0565/analit05.php>.
37 Alexander Kondakov, “Injured Narratives and Homosexual Subjectivities in Russia: The Pro-
duction of Rights Vocabulary in Post-Soviet Context”, in Marianna Muravyeva and Natalia
Novikova (eds.), Women’s History in Russia: (Re)Establishing the Field (2014), 101–117.
38 On the official strategy of using homophobia as a proxy for traditional values, and of ap-
plying moral instead of legal regulation, see Cai Wilkinson, “Putting Traditional Values
into Practice: Russia’s Anti-Gay Laws”, 138 Russian Analytical Digest (2013), available at
<http://www.css.ethz.ch/publications/pdfs/RAD-138-5-7.pdf>.
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is applied when lgbt activists are punished for attempting to organize such
unauthorized actions. In the wording of the amendments of 2013 and later,
these rules are:
(1) Article 5 of Federal Law No. 436, of 29 December 2010, on the Protec-
tion of Children from Information that Harms Their Health and Develop-
ment. Para. 2(4) of this article prohibits the dissemination of information that
“negates family values, promotes non-traditional sexual relations or provokes
disrespect toward parents and/or other members of the family.” This prohibi-
tion carries a penalty set forth in Article 6(17) of Russian Code of Adminis-
trative Offences (cao), which provides for fines of up to rub 50,000 for the
dissemination of information that can harm children.
(2) Art 6.21 of the cao, which prohibits “the promotion of non-traditional
sexual relations among minors if said promotion results in the dissemination
of information that is aimed at promoting non-traditional sexual patterns
among minors, at interesting [minors] in non-traditional sexual relations, at
postulating the social equivalence between traditional and non-traditional
sexual relations, or at providing information about non-traditional sexual rela-
tions that provokes interest in such relations.”
The prevalent interpretation of the first legislative provision is restrictive,
and tends to automatically support refusals to allow gay-pride parades and
similar actions, because there is always a probability that, at any public place
where lgbt activists can gather, there will be at least one child passing by. In
practice, this amounts to an automatic ban on public lgbt demonstrations in
populated areas.
In addition to these statutory texts, there are several federal and regional
programs that touch on family values. These programs do not have a direct
binding effect on ordinary social relations, but they can be seen as justifica-
tions for judicial decisions that protect these values from violation by minori-
ties whose activities are considered to be contrary to such values. They also
serve as guidelines for the judiciary regarding the priorities of state policy.
The programs can indirectly influence judicial reasoning in this category of
cases, even if the courts do not directly cite these programs when adjudicating
cases and justifying their decisions. A presidential decree39 from 2012 states
that social welfare is foremost endangered by such phenomena as alcoholism,
drugs, and by what is characterized as “the degradation of family and social
values” (Chapter 1), and it calls for a program to propagate these family values
39 Decree of the rf President No. 761 (01.06.2012) “About the National Strategy of Actions in
the Interests of Children in 2012–2017”. Since it has not been repealed or replaced by other
strategies, this decree remains formally in force.
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266 Antonov
(Chapter 5). Another decree establishes the priorities of the national policy,
and mentions “the revival of family values” (point 21) as one of the main goals
of the decree.40 The development program of the government enjoins that
best efforts be made in the media to propagate family values and to promote
them, especially among young people.41 It is easy to imagine that a judge who
attempted to deviate from these state policies could be suspected of disloy-
alty to the ruling regime, which would be fraught with negative professional
consequences.
5 The Constitutional Law Framework
The Constitution contains several liberal principles, including concerning ide-

ological diversity (Art. 13: “In the Russian Federation ideological diversity shall
be recognized; no ideology may be established as a state or obligatory [ideol-
ogy]”), and secularity (Art. 14: “The Russian Federation is a secular state; no
religion may be established as a state or obligatory [religion]”). These articles
are included in Chapter 1, “Fundamentals of the Constitutional System,” which
implies that law creation and law enforcement in Russia are subject to these
principles. Their pivotal significance is stressed in Article 16(2): “No other pro-
vision of the present Constitution may contradict the fundamental principles
of the constitutional system of the Russian Federation.”
These principles are echoed by a set of liberal rights and freedoms estab-
lished in the following provision of the Constitution: “the rights and freedoms
of man and citizen shall be directly operative. They determine the essence,
meaning, and implementation of laws, the activities of the legislative and ex-
ecutive authorities, and of local self-government, and shall be guaranteed by
the administration of justice” (Art.18). Among these rights and freedoms are
“freedom of conscience, freedom of religion, including the right to profess in-
dividually or together with others any religion or to profess no religion at all,
to freely choose, possess and disseminate religious and other views and act
according to them” (Art. 28); “the freedom of ideas and speech” (Art. 29(1)); the
interdiction against forcing anyone to express [their] views and convictions or
to reject them (para. 2); “the right to freely look for, receive, transmit, produce
and distribute information” (para. 3); “the right to assemble peacefully, without
40 Decree of the rf President No. 1666 (19.12.2012) “On Strategy of State National Policy of
the Russian Federation for the period up to 2025”.
41 Edict (Rasporiazhenie) of the rf Government No. 1662-p (17.11.2008) “About Conception
of Long-Term Development of the Russian Federation Until 2020”.
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weapons, hold rallies, meetings and demonstrations, marches and pickets”

(Art. 31); “the freedom of literary, artistic, scientific, technical and other types
of creative activity, and teaching” (Art. 44).
Article 55 of the Constitution establishes a mechanism to balance funda-
mental rights and freedoms with other constitutional principles and values.
Para. 2 of this article warns that “in the Russian Federation no laws shall be ad-
opted cancelling or derogating human rights and freedoms.” At the same time,
the next paragraph states that “the rights and freedoms of man and citizen
may be limited by federal law only to such an extent to which it is necessary
for the protection of the fundamental principles of the constitutional system,
morality, health, the rights and lawful interests of other people, for ensuring
the defense of the country and the security of the State” (para. 3).
The cited paragraph of Article 55 enumerates only a “necessity for protec-
tion,” but in practice all laws in a democratic state (pursuant to Art. 1 of the
Constitution, Russia is proclaimed as a democratic state) are intended to pro-
vide such protection. A strictly positivist reading of these provisions cannot
offer a clear answer to this question, and in practice such a “necessity” means
“where the Constitutional Court finds it necessary.” But this is not a solution to
the problem, as there should be criteria for the Constitutional Court itself to
decide about the necessity in question. The Constitution is silent on this point.
Careful about the limits of interpretation, the authors of the Constitution
stressed the universality of human rights: “the listing in the Constitution of
the Russian Federation of the fundamental rights and freedoms shall not be
interpreted as a rejection or derogation of other universally recognized human
rights and freedoms” (Art. 55(1)). Article 15(4) states that: “The universally rec-
ognized norms of international law and international treaties of the Russian
Federation are component parts of its legal system. If an international treaty of
the Russian Federation establishes other rules besides those envisaged by law,
the rules of the international agreement shall apply.”42 Thus, constitutional law
42 This language of the Constitution notwithstanding, under prevailing Russian legal doc-
trine, an ECtHR decision is not deemed to contain norms or principles of international
law. See Decree of the rf Supreme Court Plenum No.21 (26 Jul 2013) “O primenenii su-
dami obshchei iurisdiktsii Konventsii o zashchite prav cheloveka.” In judgment No.21-
P of 14 Jul 2015, the rf Constitutional Court ruled that decisions of the ECtHR are not
self-executing and are not endowed with supreme force above the 1993 rf Constitution
(“O proverke konstitutsionnosti polozheniia stat’i 1 Federal’nogo Zakona ‘O ratifikatsii
Konventsii …’” The Court stressed especially that the ECtHR can deviate from its proper
function of protection of human rights, and national constitutional courts should limit
the negative consequences of such ECtHR judgments on their domestic laws. As a logical
outcome of this trend, a new constitutional law was adopted in December 2016 (No.11-fkz
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268 Antonov
is supposed to provide guarantees against any particularism or exceptionalism

in the interpretation and application of these rights and freedoms. The “viola-
tion of the principle of equality of citizens before the law” by public officials is
punishable by up to five years in prison; such a contravention constitutes the
corpus delicti described in Article 136 of the Russian Criminal Code.
The applicability of these principles and rules, however, is largely limited by
two main constraints: the authoritarian political system with its traditionalist
ideology, and the formalist legal training of judges and law officers. The latter
have been and are still being taught to see the law as nothing but a set of com-
mands from the sovereign, and to consider the subjects of law (human beings)
as merely the addressees of these commands, with no rights independent of
these commands, or prevailing over them.43 Religion, morality, and the law
work together in Russia in a rather particular manner, in which the law has no
prevalence despite it being expected from a state based on the rule of law, and
where rights are subject to the concerns of sovereignty.
Russia is a secular, democratic state that is based on the rule of law and
that promotes value pluralism, but in practice moral and religious principles
often prevail over legal principles not only in politics, but also in court pro-
ceedings. On occasion, judges, scholars, and politicians in Russia admit that
“liberal” constitutional human rights are binding only insofar as they do not
contravene public morality, social dynamics,44 and in some opinions, also re-
ligious values.45 Such opinions are legitimized by Article 55(3) of the Consti-
tution, which makes it possible to limit human rights for the sake of national
security and several other collective interests. This conservative logic is rather
primitive: the law can exist only insofar as there is a state, the state is a political
form of national integration, and national integration is possible only if there
are common basic values that bring the nation together. Consequently, legal
of 28 Dec 2016) that conferred on the rf Constitutional Court the power not to execute
decisions of the ECtHR if they are deemed to be at variance with the Constitution.
43 Mikhail Antonov, “Theoretical Issues of Sovereignty in Russia”, 37 Review of Central and
East European Law (2012), 95–113. This orientation coincides with the autocratic policies
of the political regime and its understanding of the rule of law. See Jeffrey Kahn, “Vladimir
Putin and the Rule of Law in Russia”, 36 Georgia Journal of International and Comparative
Law (2007–2008), 511–558.
44 Nikolai Bondar’, “Sotsioistoricheskii dinamizm Konstitutsiii bez perepisyvaniia konstitu-
tionnogo teksta”, 2 Zhurnal konstitutsionnogo pravosudiia (2014), 22–34.
45 Boris Kurkin, “Ideologema prav cheloveka i ee interpretatsiia v sovremennoi otecheste-
vennoi pravovoi teorii”, 2 Pravo: Zhurnal vshE (2008); Mikhail Krasnov, “Khristianskoe
mirovozzrenie i prava cheloveka”, 5 Rex russica (2013), 465–477.
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rules and principles (human rights included) are not as important as collective
values, and thus should cede in case of a conflict.46
6 Case Law of the Russian Constitutional Court
Russian courts build their case law on this conceptualization of the legal ef-
fect of the constitutional principle of non-discrimination, balancing it against
other constitutional principles and refusing to confer legal protection on sex-
ual minorities. The rf Constitutional Court has had many opportunities to
confirm its negative attitude toward lgbt culture and its readiness to support
informal restrictions on it.
In 2006, the rf Constitutional Court ruled out the possibility of gay mar-
riages in Russia, reasoning that it was up to the Russian Parliament to decide
whether or not it was appropriate to introduce gay marriages.47 This 2006 rul-
ing fell rather short of the traditionalist narrative that would become typical of
the reasoning of the Court in the years to follow. In denying a claim concerning
the unconstitutionality of the rf Family Code, which permitted only hetero-
sexual marriage, the Court abstained from any criticism of liberal principles
and of the ECtHR case law evoked in the claim, concluding formalistically that,
under international treaties, Russia had never assumed the obligation to intro-
duce gay marriages. No mention of traditional culture or religious beliefs was
made in the ruling.
In 2010, in response to a claim by a well-known gay activist, Nikolai Alekseev,
the Constitutional Court considered administrative penalties for promoting
homosexuality among minors. These penalties had been introduced in the city
of Ryazan and in the Ryazan Oblast’ by the local legislature48 in 2006. When
46 Compare with the solidarist conceptions promoted by some prominent specialists in

constitutional law. See Vladimir Kruss, “Doktrinal’nye innovatsii v kontekste konstitut-
sionalizatsii rossiiskoi pravovoi sistemy”, 4 Konstitutsionnoe i munitsipal’noe pravo (2013),
2–11; Boris Ebzeev, “Konstitutsiia, gosudarstvo i lichnost’ v Rossii: filosofiia rossiiskogo
konstitutsionalizma”, 11 Konstitutsional’noe i munitsipal’noe pravo (2013), 14–23.
47 Ruling of the rf Constitutional Court No. 496-O of 16 Nov 2006 “Ob otkaze v priniatii
k rassmotreniiu zhaloby grazhdanina E. Murzina na narushenie ego konstitutsionnykh
prav punktom 1 stat’i 12 Semeinogo kodeksa Rossiiskoi Federatsii.”
48 Russia being a federal state, its constituent members (regions, republics, etc.) are empow-
ered to enact local regulations, including administrative penalties for infractions of local
regulations.
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270 Antonov
the relevant regional laws were challenged, in 2010,49 the Court reasoned that
the remedies provided under Article 29 of the Constitution should cede to
communitarian morality: “Family, maternity and childhood in their traditional
understanding inherited from [our] ancestors shall guarantee the uninterrupt-
ed change of generations; therefore, they are a condition for the preservation
and development of the multinational people of Russia and must have special
protection from the state.” This ruling meant that the non-discrimination rem-
edies provided under Article 29 of the Constitution were not valid when their
use could harm the health, morals, and spiritual development of minors. In the
opinion of the Court, this “harm” was implicitly present in any statement about
the normalcy of lgbt culture that could eventually reach children. Based on
these grounds, the rf Constitutional Court found that the protection of family
under Article 38 of the Constitution may be endangered by information about
“a parity between traditional and non-traditional families.”
Unlike the ruling from 2006, the one from 2010 contained indirect refer-
ences to “normal” and “abnormal” sexual relations, depending on their congru-
ence with the prevailing culture and tradition. Even if religious feelings were
not explicitly referred to in this ruling, they were present in the background.
As shown above, on one hand, Russian culture and tradition have always been
significantly shaped by Orthodox Christianity, which is hostile to lgbt cul-
ture (as was Communist morality in the Soviet era). On the other hand, the
new ideology of the ruling elites in Russia is explicitly based on adherence to
Orthodoxy, with President Vladimir Putin and other members of the political
establishment overtly showing their religiosity despite the principle of secu-
larity enshrined in Article 14 of the Constitution. The effect of the prevailing
religious ideology can easily be seen in the words of the ruling from 2010 about
normality and abnormality.
Affirming this approach, the Constitutional Court stressed in its ruling from
2013 that Russia had never accepted any binding obligation under its consti-
tutional law or under its international treaties to treat lgbt culture as equal
to Russian traditional culture. Concerning children and their rights, the Con-
stitution and the international treaties to which Russia is a party should be
interpreted in a way that is coextensive with the constitutional objective of
protecting minors from the possible deleterious effects of propaganda on their
mentality and psyche.50
49 Ruling of the rf Constitutional Court No. 151-O-O of 19 Jan 2010 “Ob otkaze v priniatii k
rassmotreniiu zhaloby grazhdan N.A. Alekseeva, N.V. Baeva i I.B. Fedorovoi o narushenii
ikh konstitutionnykh prav stat’ei 4 Zakona Riazanskoi oblasti ‘O zashchite nravstvennosti
detei’ i stat’ei 3.10 Zakona Riazanskoi oblasti ‘Ob administrativnykh pravonarusheniiakh”.
50 Ruling of the rf Constitutional Court No. 1718-O of 24 Oct 2013 “Ob otkaze v priniatii k
rassmotreniiu zhaloby grazhdanina Alekseeva Nikolaia Aleksandrovicha na narushenie
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Until 2014, however, the Constitutional Court had not engaged in substan-
tive discussions about the limits of lgbt rights. In its judgment from 2014,51
the Court sought to strike a balance between its jurisprudence and the case law
of the ECtHR, and considered the constitutionality of Article 6(21) of the cao,
which is applied to convict those who organize lgbt actions without authori-
zation.52 Although it found this rule to be in compliance with the Constitution,
the Constitutional Court called for the creation of a space for “unbiased public
discussions about the status of sexual minorities and for the articulation of
their position by representatives of these minorities,” and warned the lower
courts against a “formalist approach.”53 The Court found that gay pride parades
are not prohibited as such, and must be allowed unless they take on an “aggres-
sive and pervasive character,” and could thereby harm the rights and lawful
interests of other people.54 The Court agreed that state authorities have the
right to monitor how “the contentious and delicate problem of non-traditional
sexual orientation” is discussed in society to protect law and order, but this
monitoring must be proportionate and not excessive.
These liberal considerations were mitigated by the conservative statement
that appeared to have been the ratio decidendi of the case: “Russia may de-
cide how to regulate spheres pertaining to sexual relations and interpersonal
relations connected with sexuality, basing this regulation on traditional ideas
about these values in the context of the particularities of the national and con-
fessional composition of Russian society.” Here, together with its ubiquitous
traditionalist rhetoric, the Court made explicit reference to the “confessional
composition” of the Russian people as one of the reasons for imposing restric-
tions on the lgbt community. Given the presupposed animosity toward this
community on the part of Russian believers,55 the Court reached the expected
conclusion that the state should protect minors from the “imposition of social
ego konstitutsionnykh prav stat’ei 7.1 Zakona Sankt-Peterburga ‘Ob administrativnykh

pravonarusheniiakh v Sankt-Peterburge.’”
51 The formal difference between a ruling (opredelenie) and a judgment (postanovlenie) is
that a ruling is the form applied by the Constitutional Court for rejecting an inadmissible
complaint, whereas a judgment is a decision based on the merits of an accepted com-
plaint. This is why the reasoning in judgments is usually more detailed and substantiated.
52 Decision of the rf Constitutional Court No. 24-P of 23 Sep 2014 “O proverke konstitutsion-
nosti chasti 1 stat’i 6.21 Kodeksa Rossiiskoi Federatsii ob administrativnykh pravonarush-
eniiakh v sviazi s zhaloboi grazhdan N.A. Alekseeva, Ia.N. Evtushenko i D.A. Isakova.”
53 Ibid., para. 4.
54 Ibid.
55 See “Religious Belief and National Belonging in Central and Eastern Europe”, op. cit. note
7.
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272 Antonov
models that differ from the models commonly accepted in Russian society and
that are sometimes perceived as unacceptable.”56
This judgment was subject to many critical attacks, and was recently criti-
cized by the ECtHR in the Bayev and Others case from 2017.57 Supporters of the
approach proposed by the rf Constitutional Court responded that rights and
freedoms, even if they are proclaimed to be fundamental, cannot be limitless,
and that one constitutional right can restrain another right, a constitutional
freedom can be in conflict with another constitutional value or principle, and
that in reality these limits are established for each freedom in each concrete
case in the view of the circumstances of the case, i.e., the values and interests
that are at stake.58 Sorting out these conflicts is the work of judges in any devel-
oped civil-law society, and Russia is no exception to this rule, some ideological
differences notwithstanding.59 It remains to be discussed, however, whether
such considerations can justify placing religious and moral norms over consti-
tutional rights.
This brief analysis of the case law demonstrates that, in recent years, the rf
Constitutional Court has been moving to include the prevailing religious creeds
and beliefs into the normative framework of Russian law. Moving away from its
ruling, in 2006, where the issue of gay marriages was handled in a strictly for-
malist manner, the Court, under the pressure of direct or indirect discrepan-
cies between the ECtHR and the general tendencies in Russian policy, began to
56 See Ol’ga Kriazhkova, “Novyi raund bor’by za prava seksual’nykh men’shinstv: kommen-
tarii k Postanovleniiu Konstitutsionnogo Suda Rossii ot 23 sentiabria 2014 g. No. 24-P”, 6
Sravnitel’noe konstitutsionnoe obozrenie (2014), 123–131.
57 See the ECtHR judgment of 20 June 2017 in the case of Bayev and Others v. Russia (applica-
tion Nos.67667/09, 44092/12 and 56717/12).
58 See, for example, the dissenting opinion of Russian judge Dmitry Dedov at the ECtHR
in the Bayev case (https://hudoc.echr.coe.int/eng#{“itemid”:[“001-174422“]}), where he
argued that “states shall have… a wider margin of appreciation in respect of public mor-
als, decency and religion,” and that Russia may introduce positive discrimination against
sexual minorities “to protect the traditional values of Russian society.”
There are many Russian scholars who, similarly to Dedov, think that Russian tradi-
tional values are incompatible with lgbt culture. See Anatolii Diachenko and Evgenii
Tsimbal, “Sotsial’naia obuslovlennost’ zapreta propagandy gomoseksualizma”, 11 Lex rus-
sica (2013), 1216–1223. These authors insist that the Russian mentality is different from the
mentalities of people living in Western democracies. To support this position, they cite
numerous sociological polls.
59 We can refer here to the opportune formulation by several respected authors regarding
the current Russian legal system: “the civil law tradition with some special Russian char-
acteristics” (Peter B. Maggs, Olga Schwartz, and William Burnham, Law and Legal System
of the Russian Federation (2015), 1–8, esp. at 7).
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apply the traditionalist narrative, and in the end shaped its approach to lgbt
rights with a clear reference to religious dogmas. In the opinion of the Court,
these dogmas are an integral part of Russian law and may even overrule the
statutory and constitutional guarantees of non-discrimination. To shed more
light on the ideology behind the case law of the rf Constitutional Court, we
must cite the opinions of its Chief Justice, Valerii Zorkin. In a speech from 2014,
presented at the Third Congress of the World Conference on Constitutional
Justice, Zorkin insisted that “the law, being the most complete reflection of
the rational foundations of social rules, has to promote the preservation and
development of all mankind and, at a minimum, not to undermine the foun-
dations of its preservation and development.” He argued that “real life shows
that a liberal-individualistic interpretation of human rights often contradicts
this imperative. One can see this in different spheres of human life: from the
egocentric behavior of economic monopolies grabbing the planet’s main life-
supporting resources to the aggressive struggle of sexual minorities for equality
of opportunities for their self-realization, including such controversial issues as
the upbringing of adopted children. These facts, which seem to be very differ-
ent from one another, have a common root: the individualistic ideology that
currently determines the dominant approach to understanding the core meaning
and content of human rights.”60
These conclusions speak for themselves: even if the Chief Justice did not
mention religious creeds, he evidently had in mind the communitarian Rus-
sian culture based on Orthodox religious dogma. In the end, liberal rights are
admissible to the extent that they are compatible with this communitarian
culture, and it is up to the authorities of the sovereign state to determine the
limits of concession to these rights. The justification is rather trivial: there can
be no nation without common values, and no country without laws that pro-
tect these values, and no law and order without the sovereign state that keeps
the country together and enacts good laws. By this logic, in case of a conflict,
national courts should abstain from applying human rights for the sake of the
survival of the entire society.
For Zorkin, the Constitution is not only a text but “a living instrument” that
evolves in accordance with communitarian religious morality, as he noted
in a speech in 2017: “From antiquity to modern times, good lawmakers have
tried to create laws with the support of mass ideas about [what is] just. The
roots of these ideas have always been sanctified by a religious tradition of the
corresponding culture and era,” and “law, morality and religion constitute an
60 Zorkin’s report in English is available at: http://www.venice.coe.int/WCCJ/Seoul/docs/

WCCJ_report_Session_1-Zorkin_ENG.pdf. Emphasis added.
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274 Antonov
internally interconnected socio-normative complex.” This is why “protection

of human rights should not undermine [the] moral foundations of society and
destroy its religious identity.” The criterion for evaluating the admissibility of
human rights is the prevailing communitarian culture: “Norms of morality
(i.e., social morality), norms of individual morality and the rule of law, which
in their totality are determined either by the religious tradition or secular ide-
ology, are rooted in culture and consonant with the soul of every reasonable
person.”61 Evidently, lgbt rights fail to fit this criterion, and thus religious
dogma and culture evidently become an argumentative tool for justifying par-
ticularism of Russia about the protection of minority rights.
7 Case Law of the Courts of General Jurisdiction
The lower courts62 generally abide by the approaches elaborated by the rf

Constitutional Court and cite them when reasoning their decisions on limiting
lgbt rights. For the most part, the cases heard in courts of general jurisdiction
about lgbt rights concern gay-pride parades and other rallies where these
communities publicly assert and defend their sexual orientation.
Before the legislative amendments of 2013, there were no federal laws that
imposed penalties for such demonstrations. The main problem for lgbt
people was to obtain authorization for demonstrations, as local authorities
generally refused to provide them. Upon requests by lgbt activists, regional
courts regularly hear complaints about groundless refusals that uniformly dis-
miss lgbt applications. The main rationale for dismissing these complaints is
the fact that the local authorities have the competence to decide about mass
61 Valerii Zorkin, “The Essence of Law”, Lecture at the vii Saint-Petersburg International Legal
Forum (18 May 2017), available at <http://www.ksrf.ru/en/News/Documents/V.D.Zorkin_
The%20Essence%20of%20Law_Lecture_2017-05-18.pdf>.
62 The Russian court system has two higher courts: the Constitutional Court and the
Supreme Court, the latter being at the top of the system of courts of general jurisdiction.
Together with these courts, there are constitutional courts of the subjects (constituent
members) of the Russian Federation (regions, republics, etc.), but these courts do not
have the competence to hear cases pertaining to the regulation and protection of hu-
man rights, as this is the exclusive jurisdiction of the Federation and its courts (Art.71
of the rf Constitution). Even if the Supreme Court is not formally subordinated to the
Constitutional Court, given the hierarchy of laws (the Constitution as the supreme law of
the country), the Supreme Court mostly follows the case law of the Constitutional Court,
which is why one can consider, with some reservations, that the Supreme Court and its
subordinated courts are “below” the Constitutional Court.
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gatherings based on issues concerning security and public order. But after the
ECtHR condemned Russia for this formalist approach in the Alekseyev case in
2010,63 such arguments were no longer valid. To retain control over the issue of
gay pride parades, local legislatures started passing laws about the prohibition
of so-called lgbt propaganda among minors.
Before 2013, when this prohibition was also established in federal law, the rf
Supreme Court had heard several cases in which the validity of local laws was
challenged. The subject matter of these cases was almost identical, and so it is
enough for our purposes to provide a brief description of one such case.64 In
2012, the rf Supreme Court formulated defenses for these local laws, mainly
reproducing the findings of the rf Constitutional Court in the case of Alek-
seev, Baev, and Fedorova.65 This case concerned antigay laws enacted in 2009
in the Arkhangelsk Oblast’. Citing the ruling of the Constitutional Court from
2010, the Supreme Court argued that the non-discrimination remedy under
Article 29 of the Constitution was not available to those whose behavior might
endanger the constitutional values of family, maternity, and childhood, which
are protected under Article 7 of the Constitution.
The ratio decidendi in this case appears to have been that “Russian federal
legislation does not consider homosexual relations to be family values pursu-
ant to national traditions and with respect to the norms of international law.”66
Tipping the scale in favor of a broader interpretation of Article 7 of the Constitu-
tion, the Supreme Court implicitly argued that civil and human rights, including
the principle of non-discrimination, should not be applied if they collide with
63 Alekseyev v Russian Federation, App No 4916/07, App No 25924/08, App No 14599/09, [2010]
echr 1562, ihrl 249 (echr 2010), 21st October 2010, European Court of Human Rights
[echr]. Retrieved 2 Sep 2018, https://hudoc.echr.coe.int/eng#{“fulltext”:[“Nikolay%20
Aleksandrovich%20Alekseyev”],”documentcollectionid2”:[“GRANDCHAMBER”,”CHAMB
ER”],”itemid”:[“001-101257“]}.
64 The most illustrative cases were those concerning the law of the Arkhangelsk region No.
113-9-oz (the Ruling of the rf Supreme Court No. 1-apg12-11 from 15 Aug 2012); the law of
the Kostroma region No. 193–5-zko (the Ruling of the rf Supreme Court No. 87-apg12-2
from 7 November, 2012); and the law of the Samara region No. 115-gd (the Ruling of the rf
Supreme Court No. 46-apg13-2 from 27 Feb, 2013).
65 Ruling of the rf Constitutional Court No. 151-O-O of 19 Jan 2010, op. cit. note 51.
66 Ruling of the rf Supreme Court Verkhovnogo Suda rf No.1-apg12-11 of 15 Aug 2012 “Ob
ostavlenii bez izmeneniia resheniia Arkhangel’skogo oblastnogo suda ot 22.05.2012, ko-
torym otkazano v udovletvorenii zaiavleniia o priznanii nedeistvuiushchimi otdel’nykh
polozhenii oblastnogo Zakona Arkhangel’skoi oblasti ot 15 dekabria 2009 g. No.113-9-oz ‘Ob
otdel’nykh merakh po zashchite nravstvennosti i zdorov’ia detei v Arkhangel’skoi oblasti’ i
oblastnogo Zakona Arkhangel’skoi oblasti ‘Ob administrativnykh pravonarusheniiakh’”.
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276 Antonov
family values. It goes without saying that in referring to “national traditions”

and “family values,” the Court had religious dogmas in mind, although neither
the Supreme Court nor the Constitutional Court ever addressed any historical
facts or engaged in a substantive discussion about what “genuine Russian tradi-
tions” are from a historical point of view. The main point in the argumentation
of the Court was a kind of binary code—“acceptable/unacceptable”—where
lgbt culture was unquestionably coded as unacceptable.
After rf Constitutional Court Judgment No. 24-P of 23 September 2014,67
which legitimized identical federal antigay regulations, local legislatures re-
pealed their local laws to avoid the non bis per idem problem. The crucial issue
for the courts of general jurisdiction were cases concerning the legality of deci-
sions by local authorities to prohibit lgbt demonstrations. We provide a brief
analysis of two cases from 2016 to show that these courts generally follow the
reasoning of the rf Constitutional Court.
In one of these cases, the St. Petersburg City Court rejected the complaint,
reasoning that the plaintiffs (lgbt activists) failed to prove that they were go-
ing to assert their homosexuality in “an acceptable and neutral form.”68 The
Court did not set out what this form had to be, making a meaningless reference
to a “lack of neutrality” and shifting to the plaintiffs the burden to prove that
lgbt culture can be publicly asserted in a form acceptable to society. Given
the commonly shared animosity of the traditionalist culture toward homo-
sexuality, it remains unclear how this may be possible for the lgbt plaintiffs.
Shifting of the burden of proof is not compatible with the principles set forth
in a judgment from 2014 of the rf Constitutional Court concerning the inad-
missibility of a formal approach to banning gay pride parades, let alone with
the ECtHR approach enunciated in the Alekseyev case from 2010.69
In a similar case, the Court was of the opinion that the plaintiffs did not
demonstrate that information about homosexuality had any cultural, artistic,
or historical value, and that this information was worth being disseminated
publicly. Making an implicit reference to the narrative of Chief Justice Zorkin,
the Court found that the information about lgbt culture was “aggressive be-
cause it prioritizes the individual autonomy of the administrative plaintiffs.”
In the opinion of the Court, this information conveys “a subjective and inade-
quate idea about the socially recognized models of family relations commonly
accepted in Russian society and contradicts moral values.” The Court suggested
that there was “objective information” based on the values and ideas shared by
67 Decision of the rf Constitutional Court No. 24-P of 23 Sep 2014, op. cit. note 54.
68 Appellate Ruling of the St. Petersburg City Court No. 33a-10916/2016 of 22 Jun 2016 in the
case No. 2a-2006/2016.
69 Alekseyev v Russian Federation, op. cit. note 65.
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the majority, whereas the opinions of minorities are “subjective,” and therefore
distort the “objective picture.” This supposed objectivity of prevailing opinions
was justified by reference to “the traditional ideas about humanism formulat-
ed in the context of the particularities of the national and confessional com-
position of Russian society, its sociocultural and historical background, and
especially with a view to representations about marriage, family, maternity,
paternity, and childhood that are commonly recognized in Russian society and
shared by all traditional confessions.” Having established this “objective truth”
with direct references to the prevailing religious doctrines, the Court reached
the conclusion that the dissemination of information about sexual relations
should not challenge the morality or religious beliefs of the majority, which
form an integral part of the Russian legal order, and it rejected the claim.70
These rulings are illustrative of the general attitude of Russian courts to-
ward lgbt culture, which, in the end, has no legal protection because it is
not part of the traditional values of Russia. In turn, these traditional values
are frequently defined by Russian courts with reference to prevailing religious
ideas and to communitarian morality. On the whole, Russian case law is rather
homogeneous in this category of cases, and the ordinary (general jurisdiction)
courts do not shy away from reproducing not only the rulings and judgments
of the Constitutional Court, but also from copying phrases from speeches
made by its Chief Justice.
8 Russia and Europe: a Discordant Dialogue
Criticism of Russia by human rights organizations, as well as by the ECtHR

and other European agencies for violations of human rights can be viewed for-
mally as well-founded in many situations, especially given that both the echr
and the Russian Constitution grant almost exactly the same scope of rights
and freedoms. Russian courts claim to protect some rights while limiting oth-
ers, ostensibly doing so in the same manner as does the ECtHR, but with a fo-
cus on different values.71 But it is precisely this focus where the difference lies
70 Appellate Ruling of the St. Petersburg City Court No. 33a-10894/2016 of 30 May 2016
in case No. 2a-1897/2016. This reasoning was so persuasive for Russian judges that it
was copied and pasted into several other decisions in other Russian regions, e.g., Ap-
pellate Ruling of the Moscow City Court of 4 Oct 2016 in case No. 33a-35552/2016 and
Appellate Ruling of the Moscow City Court of 20 Oct 2016 in case No. 33a-35769/2016.
71 On the approach of the ECtHR, see Paul Johnson, “Homosexuality, Freedom of Assembly
and the Margin of Appreciation Doctrine of the European Court of Human Rights”, 11(3)
Human Rights Law Review (2011), 578–593.
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278 Antonov
b etween the case law of the ECtHR and that of Russian courts. This difference
becomes obvious in the polemic between the rf Constitutional Court and the
ECtHR concerning the prevention of the true values of the echr in particu-
lar, and of the legal values of Western civilization in general in cases having
to do with sexual minorities.72 The theme of values inevitably comes to the
fore when discussing differences of interpretation, providing one of the most
viable sources for reassessing the “civilizational” disputes between European
and Russian human rights institutions.
Conceptually, limiting human rights implies balancing individual values
(autonomy, self-determination, personal choice, etc.) with collective ones (se-
curity, justice, order, etc.). Currently, and in the foreseeable future, this bal-
ancing is one of the most important stumbling blocks in relations between
Russian and European institutions, as individuality and individual choice are
more highly valued in Western cultures than in Russia. Evidently, this differ-
ence in values cannot be overcome or even smoothed over without engaging
in a dialogue over values, for which neither party is fully prepared.
Some Russian legal scholars, including constitutional judges, have been
searching for a solution in the Preamble to the Constitution, which solemnly
proclaims “respect for [our] ancestors.” For example, Valerii Lazarev insists that
the Preamble justifies the traditionalist interpretation of human rights in the
sense that human rights are respected within the “moral framework” of Russian
statehood.73 An acting rf Constitutional Court Justice, Nikolai Bondar’, finds
that the Preamble establishes certain implicit moral values of supreme im-
portance that are “necessary regulators of practical life,” and therefore justi-
fies bans on the “promotion of homosexuality.” Such values, Bondar’ assures
us, save us from “attempts to impose and take to the constitutional level so-
called values of sexual freedoms and of the equal rights of gays.”74 Another
Constitutional Court Justice, Konstantin Aranovskii, pursues the same line,
although more discreetly: “No legal protection can be granted to sexual perver-
sions or same-sex marriages in a situation where the moral order of society
considers homosexuality to be an oddity or unpleasantly exotic, and if that so-
ciety has not yet fully protected truly fundamental rights.”75 In the same vein,
72 Andrey Makarychev, “Communication and Dislocations: Normative Disagreements

between Russia and the eu”, in Reinhard Krumm et al. (eds.), Constructing Identities in
Europe (2012), 45–62.
73 Valerii Lazarev, “Konstitutsionnye ogranicheniia konstitutsionnykh tsennostei”, in V. Gol-
ubtsov and O. Kuznetsova (eds.), 20 let rossiiskoi Konstitutsii (2014).
74 Nikolai Bondar, “Bukva i dukh rossiiskoi Konstitutsii”, op. cit. note 15, 9.
75 Konstantin Aranovskii, “Usloviia soglasovaniia praktiki mezhdunarodnogo i konstitutsi-
onnogo pravosudiia”, 3 Zhurnal konstitutsionnogo pravosudiia (2013), 1–10, at 6.
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rf Constitutional Court Chairman Zorkin reiterates that positive law is inter-

twined with the web of social regulation and calls for “a good deal of sound
conservatism in understanding the internal connection between law, morality
and religious values… when assessing the requirements for tolerance toward
any sexual and gender permissiveness whatsoever.”76 Other Constitutional
Court justices have made similar assertions in their publications,77 and it is
not surprising that such opinions are systematically implemented in the texts
of judicial acts.
The discrepancies between the Russian and European authorities appear
to be not so much about rules as about the values that underlie those rules,
and the practice of their implementation. The fact that the Russian courts sys-
tematically support bans on gay pride parades can serve here as an illustrative
example (including several cases filed by Nikolai Alekseyev).78 On one hand,
the ECtHR insists that such bans are discriminatory, and on the other, the rf
Constitutional Court stresses that Russian laws do not prohibit gay pride pa-
rades as such, and therefore the systematic banning of these parades by the
local authorities is due to some extra-statutory principles pursued by ordinary
officials as part of their legitimate administrative discretion. It would be incor-
rect to explain this use of discretion as an abuse of power, as officials (or judg-
es) generally gain nothing or very little from pursuing discriminatory policies
toward the lgbt population. Entwined with the broader machinery of s ocial
regulation, in relation to which they are both active agents and passive recip-
ients at the same time, judges perform not only their proper legal function
of applying the law, but also the societal function of maintaining the existing
order. For many of them, this order is synonymous with the communitarian
religious culture.
This role of Russian judges is ambiguous and controversial. On one hand,
their factual policies violate not only Russian constitutional law but also
76 Valerii Zorkin, “Tsivilizatsiia prava: sovremennyi kontekst”, 5 Zhurnal konstitutsionnogo

pravosudiia (2014), 1–15, at 10. On Zorkin’s ideas, see Mikhail Antonov, “Philosophy Behind
Human Rights: Valery Zorkin vs. the West?”, in L. Mälksoo and W. Benedek (eds.), Russia
and the European Court of Human Rights: The Strasbourg Effect (2017), 150–187.
77 At a round table discussion that was recently held at the Institute of Philosophy of the
Russian Academy of Sciences, Constitutional Court Justices Gadis Gadzhiev and Niko-
lai Bondar’ stressed the creative role of the Court in shaping a certain conservative
Russian attitude toward religious and sexual deviance. See “Pravo i natsional’nye tra-
ditsii”: The Materials of the ‘Round Table’. Participants: A.A. Guseinov, V.S. Stepin, A.V.
Smirnov, G.A. Gadzhiev, N.S. Bondar’, E.Iu. Solov’ev, V.M. Mezhuev, P.D. Barenboim,
V.V. Lapaeva, S.L. Chizhkov”, 12 Voprosy Filosofii (2016), available at <http://vphil.ru/index.
php?option=com_content&task=view&id=1541&Itemid=52>.
78 Alekseyev v Russian Federation, op. cit. note 65.
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280 Antonov
i nternational humanitarian law, which is manifestly based on the principle of

non-discrimination.79 On the other hand, their policies are congruent with the
convictions of the overwhelming majority of the population and of the ruling
elites, and one would hardly expect judges to oppose these convictions. Unlike
the Anglo-Saxon judiciary, judges in civil law countries assume a less activist
stance because of various institutional constraints, and only rarely do they act
to promote moral or legal change. They do have, however, tools for avoiding
legislative innovations, and they readily use them through conservative rein-
terpretations of constitutional principles. In practice, the liberal principles of
the Constitution are interpreted in the style of the Soviet attitude toward hu-
man rights. It would require a separate study, combining the political, cultural,
and institutional aspects of the issue, to determine why it does not work the
other way around, so that conservatively formulated rules are given a liberal
reading.
Evidently, the ECtHR is also engaged in a more complicated game than the
modest interpretation and application of the echr, the text of which is silent
on most of the topics discussed before this court. Whether a crucifix can be
displayed in a public school or whether medical personnel can wear crucifixes
around their necks, as well as many other issues, require going far beyond the
text of the Convention and require discerning and balancing basic values. If we
accept moral pluralism in the sense that there is no universal moral system (be
it Western, Christian, “civilized,” or some other), but many moral systems, each
of which has its raison d’être, courts engaged in these penumbra cases (to use
the term of Herbert Hart)80 are always responsible for their value choice and
must justify it with reference not to a single system (e.g., that of liberal values
implicitly present in the “necessity for a democratic society”) but to various
systems.81 In other words, it means that the agency (be it a court or a parlia-
ment) that assumes responsibility for making a value choice that is valid for
different countries should become a platform for intercultural dialogue and
not so much a pulpit for moralizing.
79 Eric Allen Engle, “Gay Rights in Russia? Russia’s Ban on Gay Pride Parades and the General
Principle of Proportionality in International Law”, 6(2) Journal of Eurasian Law (2013),
165–186.
80 Herbert L.A. Hart, “Positivism and the Separation of Law and Morals”, 71(4) Harvard Law
Review (1958), 593–629, at 607.
81 Sergei Belov, “Predely universal’nosti konstitutsionalizma: vliianie natsional’nykh tsen-
nostei na praktiku priniatiia reshenii konstitutsionnymi sudami”, 4 Sravnitel’noe konsti-
tutsionnoe obozreniie (2014), 37–56.
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The role the ECtHR is playing in this regard seems to be different from the
role of the Russian judiciary; their respective attitudes toward value innova-
tions in society also differ significantly. As a result, the role of the ECtHR be-
comes problematic for the Russian legal system, and more generally, for all
national legal systems with which this court cooperates. This also creates an
arena for discrepancies between the ECtHR and national courts because of the
different normative frameworks that underlie the working of European and
national institutions. The national cultural environment protected and pro-
moted by eu member states is not always in perfect harmony with the “com-
mon European (legal) culture” that the ECtHR and other European institutions
are trying to forge. All necessary reservations notwithstanding, it is reasonable
to argue that the level of tension between the supranational jurisprudence of
the ECtHR and the national legal orders of eu countries is directly proportion-
al to the difference between the “common European culture” in statu nascendi
and national legal cultures. The situation of Russia, Turkey, and other “periph-
eral” (in the sense of the cultures prevailing in these countries) civilizations
serves as an illustration. It is not unexpected that the greater the distance be-
tween such countries and the allegedly pan-European cultural core, the more
they resist cultural uniformity by claiming that the ECtHR is not competent to
articulate the supremacy of any values.
The stance repeatedly articulated both by the Russian authorities and by the
roc is that, in the final analysis, the moral precepts sermonized by the ECtHR
(or a pretense to universality of such percepts), at least within the E uropean
arena, are not clearly justifiable.82 On the contrary, they maintain that a wider
margin of appreciation is reasonably needed, provided that there are signifi-
cant differences between countries and cultures that seek to maintain their
sovereignty. From this perspective, the question is not about the complete
uniformity of the interpretation and implementation of human rights, but
about the practical reasonableness of the restraints that national legal orders
may impose on the exercise of human rights in their countries.83 This rea-
sonableness can have two dimensions. One of them is universal, setting out
to discover some rules valid for any nation or state, and the other is relative,
82 Lauri Mälksoo, “The Human Rights Concept of the Russian Orthodox Church and Its Pa-
triarch Kirill I: A Critical Appraisal”, in Wolfgang Benedek et al. (eds.) European Yearbook
on Human Rights (2013), 403–416; Kristina Stoeckl, “The Russian Orthodox Church as
Moral Norm Entrepreneur”, 44(2) Religion, State and Society (2016), 132–151.
83 Chaim Perelman, The Idea of Justice and the Problem of Argumentation (1963); Jürgen
Habermas, Between Facts and Norms: Contributions to a Discourse Theory of Law and
Democracy (1996).
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282 Antonov
searching for contingent rules depending on the circumstances in each coun-

try. The debates between the ECtHR and the Russian authorities about lgbt
rights can be described with reference to the logic of these two dimensions of
reasonableness.84
9 Conclusion
This paper analyzed the cultural constraints that are factually imposed on
actors in the Russian legal system by the prevailing social philosophy, char-
acterized by a significant degree of religious conservatism that emphasizes
collective interests and predictably opposes sexual minorities, as well as those
who defend or justify them. The reasons for this particular development of
Russian intellectual culture are beyond the scope of this paper, but it is reason-
able to argue that it is historically rooted in religious traditions that still shape
the general conservative attitudes of Russians toward sexual minorities. These
attitudes cannot be ignored by judges and other actors in the Russian legal sys-
tem, who to some extent are subject to the general perception of what is just,
acceptable, and reasonable in society.
Such a thick description can be produced from a historical perspective, pro-
viding a comparative background for drawing parallels in the development
of human rights and religious freedoms in Russia and in the West. In most
Western countries, the secularization of the state was a painful and lengthy
process having to do with the struggle for individual liberties, which led to the
realization that tolerance is a prerequisite for the protection of rights. The Rus-
sian experience was somewhat different. The Soviet state was secular from the
very beginning, which did not fundamentally change with perestroika. This
historical experience does not allow unambiguously linking positive or nega-
tive values, stating that secularity is conceptually associated with the Bolshe-
vik repressions against the clergy and believers. For this reason, the principle
of secularity in public discussions in Russia is often critically reassessed with
reference to the anti-religious and atheist campaigns conducted by the Bolshe-
viks under the banner of secularity. To Western observers, the encroachment
on religious freedoms seems to be an indisputable and impermissible violation
of civil rights, but this is not how it appears to many Russians.
To maintain the coherence of the legal order, judges and other legal actors in
Russia must balance statutory prohibitions and restrictions (like those against
84 Mikhail Antonov, “Conservatism in Russia and Sovereignty in Human Rights”, 39(1) Review
of Central and East European Law (2014), 1–40.
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gay pride parades and religious sects) with basic constitutional freedoms, and
to frame these legal norms within a wider web of normative regulation that
also includes morals and religion. Analyzing this wider perspective of norma-
tive regulation can open up new panoramas for reassessing the differences in
principles and policies behind the rules set forth in the echr, the rf Constitu-
tion, and other normative instruments, and finally, the differences in values
that provide divergent grounds for interpretation. This helps reveal the inter-
nal logic of legal regulation that outweighs the fundamental rights of sexual
minorities by way of moral and religious argumentation. This argumentation
provides some clues about the social philosophy on which Russian exception-
alism in matters concerning the rights of sexual minorities is based. A closer
look at this philosophy reveals its anti-universalist stance: the proponents of
this conservative approach stress that Russia has religious, cultural, and other
civilizational particularities that make the legal regulation of human rights
in the country irreducible to the universalist humanitarian standards of the
West.85
The indeterminacy of the decision-making process cannot be fully elimi-
nated even if the power to decide lies not in the hands of judges but of po-
litical actors. In the latter case, however, many more public debates would be
required to justify the margins of appreciation in generic cases. Bringing these
debates from the secrecy of judges’ chambers into the public sphere would
lessen the feeling of disproportionality on the part of peripheral countries be-
cause of the constant bickering over whether this or that consideration should
apply to this or that country. The lack of cogency of judicial discretion in de-
termining values and standards would (and in reality already does) also affect
their effectiveness, given that le gouvernement des juges is seen by many po-
litical actors as incongruent with the conservatively held ideals of democracy.
Whether these ideals are correct or not is a question to be decided through
public debates, with the participation of all citizens, or at least their represen-
tatives. From this viewpoint, struggling for better protection of religious and
sexual freedoms in Russia implies addressing the intricate combination of the
underpinning conventions and shared values that shape Russians’ attitudes to
the limits of individual choice in religious beliefs and sexual morality.
85 On the influence of political, historical, and social forces on the autonomy of the judiciary
in Russia in cases involving minorities, see James Richardson, Galina Krylova, and Marat
Shterin, “Legal Regulation of Religion in Russia: New Developments”, in James Richardson
(ed.), Regulating Religion: Case Studies from Around the Globe (2004), 246 ff.
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7 (2019) 184-212
brill.com/jlrsx
Balaniyot, Baths and Beyond

Israel’s State-Run Ritual Baths and the Rights of Women
Nahshon Perez
Political studies, Bar Ilan
nahshonp@gmail.com
Elisheva Rosman-Stollman
Political studies, Bar Ilan
elisheva.rosman-stollman@biu.ac.il
Abstract
Ritual immersion in Israel has become a major point of contention between Israeli-
Jewish women and the state-funded Chief Rabbinate of Israel. In order to conduct
a religious household, Orthodox Jewish women are required to immerse in a ritual
bath (mikveh) approximately once a month. However, in Israel, these are strictly regu-
lated and managed by the Chief Rabbinate, which habitually interferes with women’s
autonomy when immersing. The article presents the case, then moves to discuss
two models of religion-state relations: privatization and evenhandedness (roughly
the modern version of nonpreferentialism), as two democratic models that can be
adopted by the state in order to properly manage religious services, ritual baths in-
cluded. The discussion also delineates the general lessons that can be learned from
this contextual exploration, pointing to the advantages of the privatization model, and
to the complexities involved in any evenhanded approach beyond the specific case
at hand.
Keywords
ritual baths – religion-state relations – religious discrimination – privatization –

evenhandedness – religious feminism
Ritual immersion for Orthodox Jewish women in Israel has become a major
point of contention between Israeli-Jewish women and the state-funded Chief
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Balaniyot, Baths and Beyond 185
Rabbinate of Israel, a state organ in charge of almost all religious services for
the Jewish population. In order to conduct a religious household, Orthodox
Jewish women are required to use the ritual bath (mikveh) approximately once
a month. Public ritual baths are state-funded, and heavily regulated and man-
aged by the Chief Rabbinate. As the Rabbinate wishes to dictate its under-
standing of the “proper” usage of the mikveh (pl. mikvaot), it is unwilling to
accommodate women who wish to immerse in the mikveh, while adhering to
their own (family or otherwise) traditions and religious preferences, which de-
viate from the usage dictated by the Rabbinate. Simply put: those most harmed
by the ways in which state-funded ritual baths function, are observant Jewish-
religious women. They cannot avoid using the ritual baths, as this means the
end of family life as they see it. However, using the publicly-funded baths plac-
es them in a position where they have to face the intolerant and dysfunctional
ways in which the Chief Rabbinate manages public ritual baths. Indeed, they
face discrimination by a patriarchal structure both as women and as religious
individuals.
As such, this case serves to demonstrate several important points pertain-
ing to the general field of inquiry of religion-state relations. Of these, the two
most important ones are: first, the importance and the advantages offered by
the privatization of religion, or, to the adoption of an evenhanded or nonpref-
erentialist model for religious persons; and the second being the empowering
aspect of ‘religious markets’ for the individual believer/consumer, especially
for women, as we will illustrate below.
This article will be structured as follows. We shall begin, (Section A) with a
detailed description of the case, i.e. provide a description of the problematic,
autonomy violating functionings of the state-funded ritual baths in Israel, and
the situation of the believers/clients, (religious Jewish women), who have to
use them in order to maintain Jewish family life. Section B is dedicated to the
presentation of two models of religion-state relations: privatization and even-
handedness (roughly the modern version of nonpreferentialism), as two dem-
ocratic models that arguably, can be adopted by the state in order to properly
manage religious services, ritual baths included. Section C attempts to answer
the contested question of ‘what should the state do’, taking into account the
two noted models. It is argued, that while the model of privatization could be
seen as preferable, much depends on the ‘distance’ one chooses between so
called ‘ideal theory’, and a ‘hands on’, ‘what is feasible at a particular point in
time’ perspective. Taking such ‘distance’ between the ideal and the concrete
into account, we point also to a version of evenhandedness as a viable option.
A final comment is merited: while religion-state relations in Israel have won
much attention from many different scholars, ‘women’s affairs’ are somewhat
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186 Perez and Rosman-Stollman
neglected, and are seldom discussed within the models and contours of gener-
al religion-state theories. This model is reminiscent of the reactionary attitude
limiting women to the private sphere, while men belong in the public sphere.1
This model is even more present when ritual baths are discussed. As often in-
dicated by legal-feminist scholarship, one prominent result of the delegation
of women-affairs to the private sphere, is that norms of rights or ‘justice’ do
not permeate the private sphere, and as a result, women’s rights within the
private sphere are under-protected.2 One motivation for analyzing this case-
study through the ‘tools’ of religion-state general theories, is to strongly reject
this reactionary ‘women private/men public’ dichotomy.
A Presenting the Case-Study: Mikveh and Mikveh Usage in Israel
This section will be divided to three parts. We begin with a general explana-
tion of Mikveh usage and discuss the problematic situation of state-funded
Mikvaot in Israel (A1), we then place this case within the context of religion-
state relations in Israel (A2). We conclude (A3) with a discussion of the recent
controversy and struggle, both social and legal, over the management of ritual
baths’ main functions of immersion and conversion.
A.1 Mikveh Usage: a General Explanation

Use of the mikveh – the ritual bath – is connected closely to laws of purity
in Jewish Law (halakha). In ancient times, both men and women used the
mikveh for religious purification (tahara). During the time of the Temple, it
served the community as a whole. However, in modern times, only women are
obligated to habitually use the mikveh. According to Orthodox halakha, mar-
ried couples (Judaism frowns upon premarital/extramarital sex) must abstain
from any physical contact from the moment the woman begins her menstrual
cycle.3 This includes, but is not limited to, sexual relations. Once the bleeding
1 For an elaboration on this issue and various examples, see Catharine A. Mackinnon, Toward
A Feminist Theory of the State (Cam. Mass: Harvard u.p., 1989); Susan M. Okin, Women in
Western Political Thought (Princeton u.p., 2013).
2 See: Ruth Gavison, “Feminism and the Private-Public Distinction”, 45 Stanford Law Review
(1992), 1–45l; Susan Okin, Justice, Gender and the Family (New York: Basic Books, 1989);
C. Romany, “Women as Aliens: A Feminist Critique of the Public/Private Distinction in Inter-
national Human Rights Law”, 6 Harv. Hum. Rts. J. (1993), 87.
3 Moredchai Eliyahu, Darkei Tahara (Jerusalem: Sucath David, 1984) (Hebrew); Yekutiel Far-
kash, Tahara KaHalacha (Jerusalem: Torat Chaim, 1998), vol. 1–2 (Hebrew); Kalman Kahana,
Taharat Bat Yisrael: Hilkhot Nidda (Jerusalem: Feldheim, 1979) (Hebrew); Elyashiv Knohl, Ish
0004285751.INDD 186 204331 3/4/2019 12:25:05 PM

has ceased, the woman begins to count seven “clean” days, at the end of which
she visits the ritual bath – the mikveh. The ritual surrounding the mikveh be-
gins with the woman preparing herself for the actual immersion. Preparation
comprises fastidious cleaning of her entire body according to intricate instruc-
tions: everything from how to clean one’s nails to one’s navel. The rules pertain-
ing to mikveh preparation are mostly dictated by tradition that differs between
communities. For example, Eastern (mizrachi) communities usually require
the removal of all body hair before immersion, while Western (ashkenazi)
communities do not require this. Preparation may take place in the woman’s
home or at the mikveh building itself, depending on personal preference. Once
she is ready, the woman immerses in the immersion pool (bor) situated within
the mikveh. Again, the exact manner of immersion – how many times she im-
merses and so on – is based on her family tradition and varies between women;
a point that is of immense importance to our discussion.
In its most simple form, the process of immersion begins when the woman
enters the room where the immersion pool is situated. She must ensure there
are no foreign objects on her person (such as contact lenses, jewelry), and
when she immerses, she must be completely submerged: no part of her person
may be outside of the water, including her hair. In order to assist women in
ensuring no hair surfaces while immersing, halakhic scholars prescribed that
another woman – who must be Jewish and over 12 years old and a day – should
stand at the side of the immersion pool and report if any part of the body or
hair was not under water.4 The woman recites the appropriate blessing for im-
mersion, and immerses at least one additional time. Once she exits the mikveh,
she is again permitted to have physical contact with her husband. The ruling
requiring another woman’s presence during immersion became the basis for
the requirement for the presence of a balanit (pl. balaniyot), a bath attendant,
at every immersion.
As understood from the above description, timing is very important in con-
nection with observance of mikveh laws. Mistakes in the counting of days can
result in a longer separation time for a couple. Immersion can only take place
at night, after stars can be seen at the end of the seventh “clean day”. When
the date for going to the mikveh coincides with Friday night, this opens an
entirely new set of problems due to the Sabbath, during which Orthodox wom-
en cannot travel. This means that Orthodox women must live within walking
veIsha: Pirkei Hadrakha LaChatan veLaKala (Ein Zurim: HaKibbutz HaDati, 2003) (Hebrew);
Hillel Wertheimer, Yesod Hatahara: Kitzur Hilkhot Tahara (Bnei Brak: Taharat Yisrael, 2003)
(Hebrew).
4 ‘Shulhan Arukh’, Yoreh De’ah, 198:40.
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d istance from a mikveh in order to observe the commandment in time so that

when their time of immersion falls on Friday night, this will not prohibit them
from going to the mikveh. It is also worth noting that failure to go to the mikveh
in time, might interfere with reproduction and a couple trying to conceive will
try to minimize their time apart.
Over time, the role of the bath attendant has evolved. She is no longer con-
fined to observing that complete immersion is achieved, but many times fills an
active role in the process. In 21st century Israel, the bath attendant is expected
to run the mikveh (deal with payment, laundry, cleanliness of the facilities) as
well as attending to mikveh users. She serves as an agent of the religious system
and a gatekeeper: ensuring only “worthy” women are permitted to immerse,
i.e.: Orthodox, married women, who observe the proper rules of family purity.
While the latest official so called “ceo Circular” has limited this,5 previ-
ous conventional policy entitled the attendant to ask women any question
she deems fit: are they married? Have they performed the required examina-
tions during the seven “clean” days? When did their bleeding cease? And so
on. Current policy (as of 2017) still entitles the attendant to question wom-
en, although she may not specifically ask for the women’s marital status.
Furthermore, attending the actual immersion has taken on the form of anoth-
er e xamination, with the bath attendant physically examining women before
immersion to make sure they indeed followed the rules needed for immersion.
Needless to say that in practice, this means each attendant is free to decide for
herself what the “proper” rules for immersion are, rather than acting according
to the personal customs and explicit verbal requests of each woman.6 It is not
uncommon for an attendant to decide that a woman’s custom is unacceptable
and to force her to follow what the attendant holds as “proper” custom. For
example, an attendant can force a woman to trim her nails or shave bodily
hair, even though the woman herself does not hold by these rules. Attendants
have been known to touch women and remove their towels by force in order to
examine them before immersion without asking permission,7 to remove scabs
forcefully, and to bar a woman from immersing if considered “improper”.8 As
5 “ceo Circular” (Heb: Chozer Mancal, 2016).

6 Itim and Others vs. The Ministry for Religious Affairs and Other, Supreme Court Appeal 3022/15
hcj (2015); this case notes instances where when given the name of a rabbi who permitted
the woman coming to immerse to uphold a certain custom, the balaniyot dismiss such at-
tempts at an explanation. See, for example, p. 23: “Who is this R. Knohl?! I don’t know any
R. Knohl!”
7 Itim and Others vs. The Ministry for Religious Affairs and Other, supra note 6, p. 17.
8 Itim and Others vs. The Ministry for Religious Affairs and Other, supra note 6, p. 19.
0004285751.INDD 188 204331 3/4/2019 12:25:05 PM

noted by one of the women quoted in one of the legal cases attempting to chal-
lenge the noted treatment in ritual baths: “when you enter the mikveh [what
you want] doesn’t matter anymore. There are no boundaries around your body.
The decisions are made by the Religious Council. You can request not to be
checked [by the attendant], that you not be touched [by the attendant]. You
can ask to be supervised by a friend or to immerse unsupervised. But who
cares. You can set boundaries until you turn blue… they don’t see you. This
is an issue of control and policing and coercion. And that is exactly what the
Religious Council is doing to you.”9 When women say “the Religious Council”,
they are essentially addressing the attendants, since it is the attendants who
come into direct contact with the women.
Attendants have threatened to call the police,10 have publicly shamed wom-
en who insisted on adhering to their own customs, and in general consider
the mikveh their own private domain, rather than a public one.11 Needless to
say, such behavior can be extremely painful (physically and emotionally) and
derogatory for immersing women and creates much tension for some users of
the mikveh.
Additionally, the Rabbinate requires all Jewish women to immerse in a
mikveh in order to have a state-recognized wedding. Regulations require that
Religious Councils receive written proof the brides studied the religious laws
connected to the mikveh with a recognized authority (madrichat kalot – a bridal
consultant) as a prerequisite to receiving a marriage license. At the same time,
the underlying premise is that the officiating rabbi will ensure the bride has
indeed immersed prior to the ceremony. This means that, formally put, women
who refuse to study these laws and/or use the mikveh before their wedding
may not be able to obtain a marriage certificate.
The religious penalty for not following the rules connected with the mikveh,
is very severe.12 However, different women understand the commandments
connected to the mikveh differently.13 Indeed, many women who use the
9 Itim and Others vs. The Ministry for Religious Affairs and Others, supra note 6, p. 3.
10 Kobi Nashoni, “Asked to Immerse unsupervised and was thrown out of the mikveh,”
ynet (2015, retrieved Oct. 2017) <http://www.ynet.co.il/articles/0,7340,L-4743757,00.
html> [Hebrew].
11 Itim and Others vs. The Ministry for Religious Affairs and Others, supra note 6, and see
further in 2.3.1 below.
12 For a full explanation, see Inbal E. Cicurel, “The Rabbinate Versus Israeli (Jewish) Women:
The Mikvah as a Contested Domain,” 3 Nashim (2000), 164–190.
13 T. Hartman & N. Marmon, “Lived regulations, systemic attributions menstrual separation
and ritual immersion in the experience of Orthodox Jewish women”, 18(3) Gender & Soci-
ety (2004), 389–408.
0004285751.INDD 189 204331 3/4/2019 12:25:05 PM

mikveh are not Orthodox, but rather “traditional” (mesorati): women who
do not observe all commandments, but do observe the laws surrounding
the mikveh.14 Most of these women do not understand, or view, the mikveh
the same way that observant Orthodox women do.15 For the most part, the
mikveh acquires a shade of folk religion and the women accept the Rabbin-
ate’s authority over it in its present form.16 In their eyes, failure to conform to
the rules related to the mikveh will result in deformed children, in misfortune
for their family (physical, financial, and so on) and in general is taboo.17 What
this sociological observation means in our context however, is that the usage
of state-funded ritual baths is widespread, and is not limited to observant
Orthodox women. This point, in turn, increases the importance of the narrow,
specific way in which the Chief-Rabbinate views, or understands, legitimate
immersion.
A.2 Religion-State Relations in Israel: a Brief Description

While in Jewish communities outside of Israel, it is accepted that it is the com-
munity’s responsibility to construct and maintain a mikveh,18 in Israel, mikvaot
have become the responsibility of the state. This is a result of religion–state
relations in Israel that originated, by and large, in the Ottoman millet system.
In this system, religious denominations are recognized by the state and en-
joy exclusive jurisdiction on issues of personal law (exemplifying this histori-
cal connection is the lack of civil marriages in Israel to the present day).19 In
addition, in the Israeli version, beyond the exclusive jurisdiction over personal
14 For a further description of this group and its use of the mikveh, see: Inbal E. Cicurel, ibid;
Susan Starr Sered, Romi Kaplan, and Samuel Cooper, “Talking about Miqveh Parties, or
Discourses of Gender, Hierarchy and Social Control” in Rahel Wasserfall (ed.), Women and
Water: Menstruation and Jewish Life and Law (Boston: Brandeis u.p. 1999), 145–165; Yaacov
Yadgar, “Gender, religion, and feminism: The case of Jewish Israeli traditionalists”, 45(3)
Journal for the Scientific Study of Religion (2006), 353–370.
15 For further elaboration on women who are not orthodox or traditional, non-religious
women who are required to immerse before having a state-endorsed marriage, and the
effect of the issues at hand on them, see Section 2.3.
16 Inbal E. Cicurel, ibid.
17 For a further elaboration on this topic in the context of sexual taboo, folk religion, and
so on, see: Haviva Ner-David, “The laws of nidah : a case study in the power of ritual re-
interpretation”, PhD Dissertation, (Bar Ilan University, Ramat Gan, 2005); Hartman and
Mamon, ibid.
18 See, for example, the description and photos of the Rennert Mikveh in New York City
<http://fifthavenuemikvah.com/>.
19 Daphne Barak-Erez, “Law and Religion under the Status Quo Model: Between Past Com-
promises and Constant Change”, 30 Cardozo Law Review (2009), 2495–508; Charles Lieb-
man & Eliezer Don Yihya, Civil Religion in Israel (Berkeley: University of California Press,
0004285751.INDD 190 204331 3/4/2019 12:25:05 PM

law, most recognized denominations are also entitled to governmental provid-

ed funding. For example, the state pays the salary of clergy of various denomi-
nations, including for example, Jewish and Islamic judges in religious courts
(rabbinic and sharia, respectively).20
The arrangement between religion and state in Israel is based on a series of
laws and regulations usually referred to collectively as the ‘status quo compro-
mise’ or agreement. This agreement goes back in time to the period just prior
to the ending of the British Mandate. The founding of this agreement is ef-
fectively summarized by D. Barak Erez: “the most representative document in
this context is the letter that the Jewish Agency—the main Zionist institution
at the time (which was controlled by the secular Labor Party)—sent in 1947
to the international organization of Agudat Israel, the hegemonic movement
within the ultra-Orthodox Jewish public. This letter, also known as the “status
quo document,” included commitments to observe certain traditions in the
future state… It mentioned the recognition of the Jewish Sabbath (Saturday)
as the official day of rest; the provision of kosher food in public institutions; the
exclusivity of the religious law of marriage and divorce; and a commitment to
ensure the autonomy of the ultra-Orthodox educational system.”21
This organizing principle of religion-state relations in Israel still exists.
However, it faces fierce criticism, and is seen as unstable.22 This unbalanced
situation can be seen via the example of marriage in Israel – Jews cannot marry
in a civil ceremony in Israel, and are forced to marry via the Chief Rabbinate, a
state organ, delegated to Orthodox authority. However, in the past few decades,
it has become more acceptable for Jewish Israelis to marry outside of Israel in
a civil ceremony, cohabitate without an official ceremony, or marry in religious
or semi-religious Jewish traditional ceremonies unrecognized by the state, as
they wish to avoid an encounter with this heavily unpopular religious-state
organ.23 This is also a way to express non-religious (or non-Orthodox religious)
1983); B. Neuberger, “Religion and state in Europe and Israel”, 6(2) Israel Affairs, (1999),
65–84.
20 The Millet system applies to non-Jewish groups in Israel, but we are unable to further
discuss this important point here; see Michael M. Karayanni, “The Multicultural Nature
of the Religious Accommodations for the Palestinian-Arab Minority in Israel: A Curse or a
Blessing?”, in René Provost (ed.), Mapping the Legal Boundaries of Belonging: Religion and
Multiculturalism from Israel to Canada (Oxford: Oxford University Press, 2014).
21 Daphne Barak Erez, supra note 16, 2496–7.
22 Bernard Susser and Asher Cohen, Israel and the Politics of Jewish Identity: The Secular-
Religious Impasse (Johns Hopkins University Press, 2000).
23 About 20% of marriages taking place in Israel are either civil marriages conducted outside
of Israel by Israeli citizens (recognized by the Israeli authorities), or ‘unofficial’ marriage
rituals conducted in Israel by various Jewish denominations and groups – such rituals
0004285751.INDD 191 204331 3/4/2019 12:25:05 PM

values.24 This example (one of many), points to the somewhat odd, imbal-
anced situation of the status quo agreement – which formally exists, yet faces
much social hostility.
Be that as it may, the population in Israel is accustomed to a situation in
which religious needs are heavily subsidized and provided by the state.25
Therefore, while it is acceptable for Jews outside of Israel to pay high mem-
bership fees in order to be part of a Jewish community, in Israel, this situation
is less familiar.26 As a result, payment for using a mikveh is much cheaper in
Israel than in other countries: 15 nis (less than 5 usd) for usage of the immer-
sion pool only, 30 nis (approximately 8 usd) for use of the preparation rooms
as well (2018 prices, roughly estimated). The other side of this understanding is
that the Rabbinate feels it is fully within its mandate to regulate the use of the
mikveh, as demonstrated above.
A.3 The Controversy Over Ritual Baths: Immersion and Conversion

A.3.1 Immersion
During the past decade, Orthodox Israeli women have begun to challenge the
religious establishment’s hegemony on mikveh use. Orthodox women in their
20s and 30s began to demand recognition of their autonomy and that they
are not conducted via the chief rabbinate, yet express connection to the Jewish tradi-
tion (broadly understood). Both phenomena express dissatisfaction with the exclusive
authority the Chief Rabbinate holds over the personal status of Jews in Israel. See, Tomer
Persico, “Marriage outside of the Chief Rabbinate”, 1(1) Kikar Hair (2017), 147–156. [Heb];
A. Prashizky, “The Invention of Jewish Rituals”, in Yadgar Y. et. al. (eds), Iyonim Betkumat
Israel 7 (Ben Gurion Institute for the Study of Zionism, Sde Boker, 2014), 242–282.
24 G. Ben-Porat, Between state and synagogue: the secularization of contemporary Israel
(Cambridge: Cambridge University Press, 2013); Nahshon Perez, “The Privatization of
Jewishness in Israel (or: on Economic Post Zionism)”, 19(2) Israel Affairs (2013), 273–289.
25 This point is connected to a general position regarding the roles of the state vis-a-vis the
place of the market. Section C, below, is dedicated to an analysis of this point in the con-
text of ritual baths; for the general debate, see Debra Satz, Why Some Things Should Not Be
for Sale: The Moral Limits of Markets (Oxford: Oxford u.p., 2010); Jason Brennan and Peter
Jaworski, Markets without Limits (London: Routledge, 2015).
26 The funding of religious services is a complex mixture of state and local sources, plus a
measure of per family/individual contributions, that vary across different religious ser-
vices. At times there are two layers of funding, the first funded by the state, the second
by members of religious communities (the building of synagogues is a case in point – the
state at times provides a building, anything else is funded by the relevant community).
To this it should be added that funding for religious services is somewhat selective, while
more egalitarian than the past, non-Orthodox communities often do not receive their fair
share of state funds.
0004285751.INDD 192 204331 3/4/2019 12:25:05 PM

regulate their own religious practices of family purity.27 The campaign, named
“Let us immerse in peace” (tnu litbol besheket), demanded that the bath at-
tendants remove themselves from their position as gatekeepers and become
“enablers” – assisting women who ask for their help and leaving others alone
per their wishes.28 Their main claim being that Orthodox halakha supports
their behavior, and there is enough halakhic basis for these practices. Further-
more, these women posit that since the state funds the mikveh system from
taxpayers’ pockets, and since they themselves pay these said taxes, the mikveh
attendants cannot bar women from using the mikveh just because they do not
conform to the hegemonic interpretation of the laws of family purity. As we
27 This pattern fits into the very interesting phenomena of religious feminism and activism,
see Lihi Ben-Shitrit, “Gender and the (In)divisibility of Contested Sacred Places: The Case
of Women for the Temple”, 10 Politics and Religion, First View (May, 2017), doi: https://doi.
org/10.1017/S1755048317000281; Ruth Halperin-Kaddari, Women in Israel: A State of Their
Own (Philadelphia: University of Pennsylvania Press, 2003); Tova Hartman-Halbertal, Ap-
propriately Subversive: Modern Mothers in Traditional Religions (Harvard u.p., 2002); Ronit
Irshai and Tania Zion Waldoks, “Modern Orthodox Feminism in Israel: Between Nomos
and Narrative”, 15 Mishpat U-Mimshal (2013), 1–94. [Heb]; Y. Jobani and N. Perez, Women of
the Wall: Navigating Religion in Sacred Sites (Oxford: Oxford u.p., 2017); Pnina Lahav, “The
Women of the Wall: A Metaphor for National and Religious Identity”, 30(2) Israel Studies
Review (2015), 50–70; Frances Raday, “Women’s Human Rights: Dichotomy between Reli-
gion and Secularism in Israel”, 11(1) Israel Affairs (2005), 78–94; Meital Pinto, “The Absence
of the Right to Culture of Minorities within Minorities in Israel: A Tale of a Cultural Dis-
sent Case”, 4 Laws (2105), 579–601. Raday, Francis. (1995). “Religion, Multiculturalism and
Equality: the Israeli Case”, Israel Yearbook on Human Rights, 25, pp: 193–241; Ross, Tamar.
(2004). Expanding the Palace of Torah. Boston: Brandeis u.p.
See, generally: Avigail Eisenberg and Jeff Spinner-Halev (eds.), Minorities within Mi-
norities (Cambridge: Cambridge University Press, 2005); Martha Nussbaum, Women and
Human Development (Cambridge: Cambridge u.p., 2000); Susan. M. Okin, “Mistresses of
their Own Destiny: Group Rights, Gender and Realistic Rights of Exit”, 112(2) Ethics (2002),
205–230.
28 Kobi Nashoni and Telem Yahav, “The Supreme Court: Reform and Conservative
Groups may Convert in Public Mikvaot,” Ynet, 11 Feb. 2016 (accessed October 2016)
<http://www.ynet.co.il/articles/0,7340,L-4765194,00.html>; ynet, “The balanit yelled
at me: Go immerse in a Reform Mikveh and never come back!” ynet 21 July, 2015
(accessed October 2017) <http://www.ynet.co.il/articles/0,7340,L-4682499,00.html> [He-
brew]. See also the facebook campaign by the same name: <https://www.facebook.com/
tnulitvolbesheket/>. It was assisted by the facebook groups “I too am a religious femi-
nist with no sense of humor” and “Immersing Pleasantly [tolvlot be’nahat]”, the the latter
being a private group where one must be accepted as a member in order to post and read
posts.
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shall see below, these are two very different arguments: the former, an inner-
religious one; the latter, a citizenship based claim.
The most tangible result of this change of behavior was the demand of
women to immerse without the presence of the bath attendant. Women, most-
ly in the Jerusalem area, began to ask bath attendants directly to stay out of the
immersion pool room while they used it. Immersing without the presence of
another woman is recognized in Orthodox halakha, if not encouraged.29 In Is-
raeli rural communities (kibbutzim and moshavim), where there was no official
designated bath attendant, women could either ask a friend to attend their im-
mersion in order to ensure total submersion, or immerse alone, using mecha-
nisms prescribed halakhically in order to ensure submersion.30 Urban women
who began to contest the presence of bath attendants, used these precedents
to justify their perceived right to immerse alone.
The demand for “unattended immersion” (tvilla lelo hashgacha) was not
a mass movement at any point, however, the movement was seen as able to
bring change in the general behavior of bath attendants, causing them to ac-
cept women’s personal observances and practices rather than forcing them to
conform to the establishment’s view of “proper” religious conduct. In other
words, even women who would like the presence of the bath attendant, usually
prefer that she limit herself to supplying a certain service, rather than com-
manding observance. Every woman should have the right to request the as-
sistance she wishes to receive during the ritual and to reject interference in her
personal observance.31
However, the request that bath attendants allow women more autonomy
in use of the mikveh was quickly met with hostility on the part of the Chief
Rabbinate, the local Jerusalem Rabbinate, and on the part of the bath atten-
dants themselves. As described above, requests and demands for autonomy of
practice were met with public humiliation, calling in of the police and other
sanctions. Consequently, a group of women turned to the Supreme Court, de-
manding that their rights be upheld.32 After many delays, the State reported to
the Court it would not be defending itself, as the women’s claims were deemed
justified and would be accepted by the State. Left as the sole defendant in the
29 Elyashiv Knohl (2003), ibid; Elyashiv Knohl, Proposal for State Policy Regarding Mikvaot
(Unpublished responsum, 2013) [Hebrew]; Binyamin Lau and Noa Lau, “The Boundaries
of the Bath Attendant’s Responsibility,” 66 De’ot (2014), 2–5 (Hebrew).
30 Elyashiv Knohl (2003), ibid; Elyashiv Knohl (2013), ibid.
31 Binyamin Lau and Noa Lau (2014), ibid.
32 Itim and Others vs. The Ministry for Religious Affairs and Other, supra note 6.
0004285751.INDD 194 204331 3/4/2019 12:25:05 PM

case, the Jerusalem Rabbinate accepted defeat.33 In September 2016 the Su-
preme Court ruled that women may immerse in the state-run mikveh system
without a bath attendant present. This followed the aforementioned ruling
banning bath attendants from asking women questions regarding religious
observance or marital status. However, the Chief-Rabbinate was adamant
that women using state-funded baths be notified of the ‘proper’ use of baths
according to the Rabbinate’s view of ‘properness’, via signs on the walls and
suggestions offered by the balanit.34 This means that some of the noted im-
provements function via a ‘don’t ask don’t tell’ mode. For example, in the case
of immersion of unmarried women, women using the ritual bath are informed
that immersion for unmarried women is strongly discouraged, however, un-
married woman cannot be legally banned from immersing.35 The ‘improve-
ment’ is therefore that unmarried women are not turned away from the public
ritual baths, as long as they (de facto) don’t flaunt their unmarried status and
accept that they are not seen as “proper” users of the bath.
Such an ‘improvement’ is very far from actual recognition of, and accep-
tance of, women who wish to use the baths according to their understanding
of Jewish religious law.
A.3.2 Conversion
Aside from serving as a function within family purity laws, the mikveh serves a
second purpose: it is part of the process of conversion to Judaism. After study-
ing and passing required tests, female converts to Judaism immerse in the
mikveh before a religious court (bet din) consisting of three men.36 Immersion
for the purpose of conversion takes place during the day, as opposed to im-
mersion for purity. It can take place at any time, although not on the Sabbath.
This ritual applies to, and is required by, all tracks of conversion: Orthodox,
Conservative and Reform. In Israel, Orthodox Judaism enjoys strong preferen-
tial treatment, within the aforementioned construct of the status quo. Other
Jewish denominations, while slowly and gradually entering both the social fab-
ric and the state allocation system, still face discriminatory treatment by the
33 In May 2017, it was discovered that the Jerusalem Rabbinate forces ritual bath users to sign
a formal document if they wished to use the bath without a balanit. The form includes
personal identification details. This amounts to a state collection of religiously dissenting
behavior, and has created an outcry, which might bring the case back to courts.
34 ceo Circular, 2014; ceo Circular (2016), ibid.
35 ceo Circular (2016), 103.
36 The presence of three men during the immersion is understandably a cause for various
problems. However, the scope of the current essay prevents us from delving into this
further.
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state.37 As a part of this discriminatory system, the Chief Rabbinate and the
Ministry for Religious Affairs oppose the use of the state-held mikvaot by other
denominations; including their use for non-Orthodox conversions. While in
matters related to family purity, it is not easy for bath attendants to recognize
if the women coming to immerse are Orthodox or otherwise, arranging for the
use of the mikveh by a religious conversion court allows the Rabbinate to con-
trol access by other denominations. Since using the mikveh for conversion pur-
poses means opening it during the daytime for the use of a specific convert, the
Rabbinate is in a position to bar other denominations from using it by simply
refusing to open the building, warm the water, turn on the lights, etc.
This creates a tangible problem for Conservative and Reform conversion
courts, who must find a mikveh to accommodate them; usually one not run
by the state (see for example the quotes from Haredi leaders regarding the re-
quest of Reform and Conservative brides to use public mikvaot, specifically
the extremely insulting remark by former mk Eli Yishai: “they should use a
bathtub.”).38 As a result, instead of being able to use the existing infrastructure,
where there are mikvaot spread all over Israel in every major city and in most
smaller communities, non-Orthodox denominations are forced to look for a
private mikveh or use the Mediterranean sea.39 Since those who need to use
the mikveh are equal tax-paying citizens, this is seen by them, and many oth-
ers, as clearly unfair and discriminatory.
Indeed, in February 2016, the Supreme Court ruled that Reform and Conser-
vative conversions can take place in public mikvaot.40 As a result, mk Moshe
Gafni, of the ultra-orthodox Yahadut HaTorah party, claimed that the rul-
ing interfered with the status quo41 and subsequently presented a draft law
designed to circumvent the Supreme Court ruling and ban non-Orthodox
37 Patricia J. Woods, Judicial power and national politics: Courts and gender in the religious-
secular conflict in Israel (Suny Press, 2009); Ephraim Tabory, Reform Judaism in Israel:
progress and prospects (Institute on American Jewish-Israeli Relations of the American
Jewish Committee, 1998).
38 Ben Haim, Avishai (2005). “Entrance to the Mikveh for Reform is Forbidden,” nrg, 16 Oct.
2005 (accessed Oct. 2017) <http://www.nrg.co.il/online/1/ART/996/565.html> [Hebrew].
39 Kobi Nashoni and Telem Yahav, (2016) ibid; Sharon Pulver and Yair Etinger, “The Supreme
Court: Allow Reform and Conservative Conversions in Public Mikvaot,” Haaretz, 11 Feb.
2016 (accessed October, 2016) <http://www.haaretz.co.il/news/law/.premium-1.2849501>.
40 Masorti Movement v. Religious Council of Beer Sheva, Administrative Appeal 5875/10; Kobi
Nashoni and Telem Yahav, (2016) ibid; Sharon Pulver and Yair Etinger (2016), ibid.
41 Yair Ettinger, “Yahadut Hatorah advancing a Circumventing Law,” Haaretz, 12 Feb. 2016
(accessed: October 2016) http://www.haaretz.co.il/news/education/.premium-1.2849849.
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d enominations from using public mikvaot. The law would formally cement the
policy whereby only Orthodox practices sanctioned by the Rabbinate could
be implemented within public mikvaot, only religious (married) orthodox
women could use them and only with the supervision of a bath attendant.42
After the Attorney General, Avichai Mandelblit, noted that the law would be
unconstitutional, and after various parliamentary acrobatics designed to allow
the law to be presented, it was finally taken to the floor for a formal vote in
March 2016. National-Religious parliamentarians mk Shuli Mualem (HaBayit
HaYehudi) and mk Rachel Azaria (Kulanu) opposed the law since it would
adversely affect Orthodox women who wished to immerse according to their
own customs (as described above). After considerable efforts and negotiations,
the proposed bill was rephrased so that it only barred non-Orthodox denomi-
nations from using public mikvaot for conversions and was not scheduled to
interfere with private practices of Orthodox women.43
The law itself passed in June 2016, with the understanding that it would not
be implemented for 9 months in order to allow for the construction of four
additional mikvaot for the use of non-Orthodox denominations. The Jewish
Agency44 was to be in charge of these mikvaot.45 This solution, even if imple-
mented, demonstrates the fact that state funded religious services, ritual baths
included, are provided in a discriminatory fashion, as non-Orthodox factions
will not have access to public ritual baths, thereby limiting their ability to con-
vert. In this, they are deemed by the government as not being entitled to fund-
ing in the way the Orthodox denomination is. As of the summer of 2018, the
situation remains unchanged.
42 Esther Levin, “Disputed Waters,” Yediot Aharonot, 30 March, 2016. Note that this conflicted
with the aforementioned petition of Orthodox women to protect their autonomy in the
mikvaot.
43 Zeev Kam and Mendy Grozman, “Agreement Reached on Mikvaot Law”, nrg, 6 June 2016
(accessed October 2016) <http://www.nrg.co.il/online/11/ART2/785/013.html>.
44 The Jewish Agency is a para-state organization, funded mainly by donations from Jewish
communities worldwide. It has special standing vis-a-vis the state in its functioning re-
garding Jewish migration to Israel and other issues. The noted Mikvaot solution however,
even if adopted by the Jewish Agency, is far from constituting equal treatment by the state
vis-a-vis its citizens upholding different religious views.
45 Jonathan Lis and Yair Ettinger, “Mikvaot Compromise”, Haaretz, 13 June 2016 ( accessed
October 2016) <http://www.haaretz.co.il/news/politi/1.2974229>, [Hebrew]; Yair
Ettinger and Jonathan Lis, “An Apparent Compromise Regarding the Mikvaot Law,”
Haaretz, 13 June, 2016 (accessed October 2016) <http://www.haaretz.co.il/news/politi/.
premium-1.2973754>.
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B Privatization and Evenhandedness: Two Models of Religion-State

Relations
In this section, we move away from the case-study to more general grounds of
religion-state models illustrated in non-particular terms. This might be seen as
a detour. However, in order to understand the problems involved in the ritual
baths case, an adequate understanding of the theoretical ‘lay of the land’ is
required. Once the theoretical models are laid out, we can turn back to the
case at hand, and point to some potential solutions to the current conundrum
of ritual baths in Israel. We shall divide this section to two subsections: one to
privatization (B.1), the second to evenhandedness (B.2). While these models are
not exhaustive of all possible religion-state relations,46 they do meet the two
following important criteria; First, they are legitimate, and perhaps dominant
within the liberal-democratic world (see below). Second, a careful reading of
the problems encountered by religious women habitually using ritual baths,
as described by the women themselves (see Section A), clarifies that adhering
to their needs and basic rights to autonomy, religious non-discrimination and
right to privacy, point to, mainly and perhaps even exclusively, to the two noted
models. Note that these are the claims raised by women themselves, and are
an important motivation in the search for a better solution than the approach
in place at present.
B.1 Privatization of Religion

In this model the state is unaffiliated with any given denomination and em-
ploys a strong ‘hands off’ approach. It attempts to reduce governmental en-
tanglement with religion by strictly limiting the role religion can play in
political institutions and by respecting the autonomy of religions. The rules
that regulate religion-state relations do not aim to assist, or hinder, any reli-
gion, religious belief or religious practice (although they might have varying
effects on them). As a result of this ‘hands off’ approach by the government,
religious needs are funded by the relevant members of given religious com-
munities, not the state.
This model (together with its various interpretations) won important sup-
portive argumentation from many important political figures and scholarly
46 For a comprehensive overview see Jonathan Fox, An Introduction to Religion and Politics.
(New York: Routledge, 2013); W. Cole Durham Jr., “Perspectives on Religious Liberty: A
Comparative Framework” in John D. van der Vyver & John Witte Jr. (eds.) Religious Human
Rights in Global Perspective: Legal Perspectives (Boston: Martinus Njhoff, 1996), 1–44.
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sources.47 Furthermore, this model gained the support from theologians with-
in Islam,48 Judaism49 and Christianity,50 which increases its importance.51
While there are many different justifications for this model, we shall focus
here on one of its most important justifications: that of equality. According to
this argument, citizens of democratic governments rightly expect their govern-
ments to treat them as equals and safeguard their rights equally. Since citizens
of western democracies, and most other contemporary states, hold a variety
of different religious beliefs (or none at all), a government that supports one
given religion in various ways, fails to fulfill this expectation, and therefore
violates its commitment to treat its citizens with equal concern and respect.52
It therefore follows that democratic governments should attempt, as much as
possible, to avoid establishing and/or favoring any religion and, consequently,
47 To name but a few: T. Jefferson, “A Letter to Danbury’s Baptists Association” (1802), avi-
alable at: <https://www.loc.gov/loc/lcib/9806/danpre.html>; James Madison, “Memorial
and Remonstrance against Religious Assessments” (1785), available online at: <http://
press-pubs.uchicago.edu/founders/documents/amendI_religions43.html>; Everson
v. Board of Education, 330 u.s. 1 (1947). See also, among major contemporary thinkers:
John Rawls, Political Liberalism (ny: Columbia u.p., 1993); Brian Barry, Culture and Equal-
ity (London: Polity, 2001); Ronald Dworkin, “Liberalism” in Stuart Hampshire (ed), Pri-
vate and Public Morality (Cambridge University Press, 1977), 113–143; Martha Nussbaum,
Liberty of Conscience (New York: Basic Books, 2008).
48 An Naim, A. Islam and the Secular State. Cambridge, (ma: Harvard u.p. 2010).
49 Suzanne L. Stone, “Religion and State: Models of separation from within Jewish law”,
6(3–4) Int J. Constitutional Law (2008), 631–661; Yeshayahu Leibowitz, Belief, History, and
Values (Jerusalem: Hebrew University Student Union, (1982) [Heb.]; Yeshayahu Leibow-
itz, Judaism, Human Values, and the Jewish State, (E. Goldman et al translators). Camb.
Mass: Harvard u.p., 1992).
50 John Courtney Murray, “Civil Unity and Religious Integrity”, available on line at: http://
www.library.georgetown.edu/woodstock/murray/whtt_c2_1954d (1954), 45–78; Stanley
Hauerwas, “A Christian Critique of Christian America” in the Hauerwas Reader, John
Berkman and Michael Cartwright (eds.) (Durham: Duke u.p., 2001), 459–480.
51 While this model indeed wins wide support, it is not without flaws, see Joseph Weiler,
“Lautsi: Crucifix in the Classroom Redux”, 21(1) European journal of international law
(2010), 1–6; D. Miller, “Majorities and Minarets: Religious Freedom and Public Space”, (46)
British Journal of Political Science, (2016), 437–456 ; Nomi Maya Stolzenberg, “He Drew a
Circle that Shut Me Out: Assimilation, Indoctrination, and the Paradox of a Liberal Edu-
cation”, 106 Harv. L. Rev. (1993), 581.
52 John Rawls (1993), ibid; Ronald Dworkin (1977) ibid; Robert Dahl, On Political Equality
(New Haven: Yale u.p., 2006); Brian Barry (2001), ibid; An Naim (2010), ibid; Yeshayahu
Leibowitz (1992), ibid; Philip B Kurland, “Of Church and State and the Supreme Court”, 29
U. of Chicago Law Review (1961), 1–97; Stanley Hauerwas (2001), ibid.
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avoid creating distinctions between individuals based on religious belief.53

Furthermore, by respecting the equal status of all citizens via the separation
‘hands off’ approach, the state also respects the rights and liberties54 of citi-
zens to join (or leave) any religious group or association as they see fit (Green-
awalt, 1998).55 Moving on, additional arguments for the privatization model,
that merit a brief mention include:
First, the privatization model unburdens the state and its organs from the
need to reach decisions in religious affairs. Religious issues are often highly
contested, involving intricate theological disputes, and governments are usu-
ally incapable of making such decisions.56
Second, the privatization model, following its egalitarian characteristics,
does not create resentment vis-a-vis the state which can accompany scenarios
in which the state prefers one religion over another.57
Third, this model protects religions themselves from the heavy hand of the
state. As many historical sources demonstrate, many states had an aggressive
attitude towards religions, seeing it as a potential rival, a source of criticism or
both. Creating a distance between religions and governments, therefore, pro-
tects religions from adversarial meddling made by governments.58
Fourth, and last, privatization of religion brings about a market in religions,
in which religions have to compete over believers. As noted by economists/
philosophers,59 sociologists,60 and legal scholars,61 a free market of religions
is beneficial for religions and believers. A free market of religions forces re-
ligions to provide better services, and presumably to stay away from corrupt,
53 Lynch v. Donnelly 465 us 668, 688 (1984) (esp. O’Connor, J., concurring); Martha Nuss-
baum (2008), ibid.
54 Denoting here ‘liberty’ as non-interference, see T. Hobbes, Leviathan, N. Malcolm (ed.)
(Oxford: Oxford u.p., 2012 [1651]), vol. 2, Part 1, Ch. 14 ; Gerald Gaus, Political Concepts and
Political Theories (Boulder, co.: Westview, 2000).
55 Kent Greenawalt, “Freedom of Association and Religious Association” in A. Gutmann
(ed.), Freedom of Association (Princeton: Princeton u.p., 1998), 109–144.
56 R. Epstein, Simple Rules for a Complex World (Harvard u.p., 1995).
57 But see the empirical examination of this point in: Perez, N., Fox, J., & McClure, J.M.
(2017). Unequal State Support of Religion: On Resentment, Equality, and the Separation
of Religion and State. Politics, Religion & Ideology, 18(4), 431–448.
58 See Jobani and Perez (2017), supra note 27, ch. 5 for an extended discussion of this point.
59 Adam Smith, An Inquiry into the Nature and Causes of the Wealth of Nations, R.H. Camp-
bell and A.S. Skinner (eds.) (Oxford: Clarendon Press, 1979), 792–3.
60 Roger Finke and Rodney Stark, “Religious Economies and Sacred Canopies”, 53(1) Ameri-
can Sociological Review (1988), 41–49.
61 Michael W. McConnell and Richard A. Posner, “An Economic Approach to Issues of Reli-
gious Freedom”, 56(1) The University of Chicago Law Review (Winter, 1989), 1–60.
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reactionary behaviors; believers will have a wider set of religious groups to

choose from, and the important option of ‘exit’ from a religious group if it con-
ducts itself in a way which is unacceptable to the believers (say, misogynic) will
be made available to them.62
B.2 Evenhandedness
A second option for religion-state relations is evenhandedness. This op-
tion, which goes back to the late 18th century debates in Virginia regarding
religion-state relations (then known as ‘nonpreferentialism’),63 won recent
re-articulation and supportive argumentation from major scholars J. Carens,64
and A. Patten.65 In this version, the state provides religious services to all rec-
ognized religious groups, but does so in an equitable fashion. Carens writes as
follows: “what fairness entails is a sensitive balancing of competing claims for
recognition and support in matters of culture and identity. Instead of trying to
abstract from particularity, we should embrace it, but in a way that is fair to all
the different particularities. Now being fair does not mean that every cultural
claim and identity will be given equal weight, but rather that each will be given
appropriate weight under the circumstances and given a commitment to equal
respect for all. History matters, numbers matter, the relative importance of the
claim to those who present it matters…”.66
The basic justification for this approach seems to be a general view of the
state as a welfare state. If a state wishes to provide the basic needs and interests
of its citizens (to some extent), religious needs are a part of this package. The
equitable funding of religious needs can be deemed as important as public
libraries or public universities, provided by most modern democratic states.
62 M.E. Warren, “Voting with Your Feet: Exit-based Empowerment in Democratic Theory”
105(4) American Political Science Review (2011), 683–701; A. Hirschman, Exit, Voice and Loy-
alty (Cambridge, ma: Harvard University Press, 1970). For an examination of the ‘exit log-
ic’ as applied to religious communities, see Farrah Ahmed, “Personal Autonomy and the
Option of Religious Law.” 24(2) International Journal of Law, Policy and the Family (2010);
Dagmar Borchers, “Calculating on Identity? The Costs and Benefits of the Costs-of-Exit
Debate” in D. Borchers and A. Berlin Vitikainen (eds.), On Exit (De Gruyter, 2012), 57–77.
63 See: Leonard Levy, The Establishment Clause: Religion and the First Amendment (Cha-
pel Hill: University of North Carolina Press, 1994); Thomas J. Curry, The First Freedoms
(Oxford: Oxford University Press, 1986).
64 Joseph H. Carens: “Two conceptions of fairness: A response to Veit Bader”, 25(6) Political
Theory, (1997), 814–820; Joseph H. Carens. Culture, Citizenship, and Community, (Oxford:
Oxford University Press, 2000).
65 Alan Patten, Equal Recognition: The Moral Foundations of Minority Rights (Princeton:
Princeton University Press, 2014).
66 Joseph H. Carens (1997), supra note 64, 818.
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However, the evenhanded model faces challenges not shared by the priva-
tization model. While not making the model impermissible, they do highlight
its severe shortcomings. The first challenge regards identification, the second
regards entanglement. The identification challenge is as follows: for the gov-
ernment to allocate funding for religious needs, a given institution will have
to identify the recipients. This means that a given institution would have to
survey, sort, and pick groups for state-based recognition and support; conse-
quently devising a pre-recognized allocation system. This is a difficult mission.
Selecting some religious groups, but not others, to support will raise the issue
of what are the relevant criteria, which is bound to be controversial. There are
many religious groups and subgroups within any democratic state, and many
sub-divisions within any historical religion, Judaism included.67 Furthermore,
deciding on a funding system is all but trivial. Would it be based on the number
of adherents (and how such a data will be collected? Do we want the govern-
ment to know who goes to a Mosque, Church or Synagogue/Temple, and how
often?), tradition (a contested concept), the choice of the government based
on the preferences of prime ministers or presidents? None of the above seem
attractive, to put this point mildly.
This point leads to the second challenge faced by evenhanded models,
that of entanglement. One possible evaluative tool that can be used for deter-
mining the importance of a religious need to the believers (and hence to the
evenhanded allocation mechanism) is to follow its centrality to the noted reli-
gion as indicated by the relevant theology. This option (mentioned by C arens
above) won a scathing critique from late conservative u.s. Supreme Court
Judge Scalia, writing the following lines: “It is no more appropriate for judges
to determine the “centrality” of religious beliefs before applying a “compelling
interest” test in the free exercise field than it would be for them to determine
the “importance” of ideas…. what principle of law… can be brought to bear
to contradict a believer’s assertion that a particular act is “central” to his per-
sonal faith? Judging the centrality of different religious practices is akin to the
unacceptable “business of evaluating the relative merits of differing religious
claims.”68
67 Hardin, Russell (2004). “Subnational Groups and Globalization”, in Dowding, Keith, Rob-
ert Goodin and Carole Pateman (eds.), Justice and Democracy, (Cambridge: Cambridge
University Press), pp. 179–194; Schuck, Peter H. Diversity in America: Keeping government
at a safe distance. Harvard University Press, 2006.
68 This quote is from Scalia’s majority opinion in the famous u.s. supreme court decision:
Employment Division, Department of Human Resources of Oregon v. Smith, 494 u.s. 872
(1990), 886–7; see the detailed discussion in Jobani and Perez, Women of the Wall (supra
note 27), ch.4.
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Scalia echoes important concerns going back to Locke (1689)69 and Madi-
son (1785),70 who were concerned about an entanglement of religion and state.
Once the state attempts to identify and allocate funds to support (or answer)
religious needs in any modern democratic state the multiplicity of such groups,
and inner disputes within such groups, will make such an entanglement with
beliefs and theological disputes inevitable. This means that the state will have
to reach substantial religious decisions. This point is often disliked by both gov-
ernments and religions. Governments, more often than not, do not wish to in-
tervene in religious doctrines, religions are concerned by secular interference
in their internal affairs.71
The noted problems of ‘identification’ and ‘entanglement’ point to major
flaws of this model, especially when attempting to think through institutional
implications (see below). Now that the models have been presented, we turn
to Section C, and examine ‘what might a preferable solution be’.
C Ritual Baths between Privatization and Evenhandedness; foward a

Suggested Solution
As we argue that the current ritual-baths system is unacceptable, we turn to

explore possible alternatives, with an eye towards the two models presented in
Section B: privatization (C.1) and evenhandedness (C.2).72
69 John Locke, “A Letter Concerning Toleration”, in R. Vernon (ed.) Locke on Toleration

(Cambridge: Cambridge u.p., (2010 [1689]).
70 James Madison (1785), ibid.
71 See the complex treatment of this topic by Jacob Levy, Rationalism, Pluralism and Freedom
(Oxford u.p., 2015); Victor M. Muñiz-Fraticelli, “The Distinctiveness of Religious L iberty
in Mapping the Legal Boundaries of Belonging” in R. Provost (ed.), Mapping the Legal
Boundaries of Belonging: Religion and Multiculturalism from Israel to Canada (Oxford:
Oxford University Press, 2014), 99–118; Víctor M. Muñiz-Fraticelli, The Structure of Plural-
ism (Oxford: Oxford u.p., 2015).
72 Any work that attempts to ponder alternatives to an existing institutional arrangement
has, at some point, explicitly or implicitly, to choose a certain ‘distance’ from existing
institutions. By doing this a given author makes several very complex, at times under-
theorized decisions: which existing institutions are permanent and which can be
changed? How can such decisions be reached? Which normative principles can never
be waived, and which are less important? These are weighty questions, debated in the
relevant literature in law (Cass Sunstein and Edna Ullmann-Margalit, “Second Order De-
cision”, U
niversity of Chicago Public Law and Legal Theory Working Paper no. 1. (1999) and
political theory (P. Gilabert and H. Lawford-Smith, “Political Feasibility: A Conceptual Ex-
ploration”, 60(4) Political Studies (2012), 809–825). In the examination of the models be-
low, the decision was to present both privatization, and evenhandedness, as two options
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C.1 Privatization
In this option the state retreats from a sphere of activity it previously occupied
and ceases to fund ritual baths altogether. The building and maintenance of
the baths will shift from the state to civil society. This usually means either
non-profit religious associations and communities, or for-profit firms would
provide such services. Whatever the solution found, the state remains unin-
volved. This is the simplest, and most straightforward solution to the conun-
drums described above. In this solution, the state stops identifying with one,
controversial interpretation of Judaism, and ceases to fund this specific activity
of the Chief Rabbinate.
The advantages of the privatization model include a state which is not
partial to one explicit religious view; avoidance of the social instability that
follows the noted partiality; unburdening the state from the need to make re-
ligious decisions; maintaining an egalitarian position vis-a-vis citizens holding
different religious views; such a model protects religions from the heavy hand
of the state; finally, it improves religions themselves and the services provided
to religious believers; denominations will have to compete over believers, and
believers find religious services more tailored to their preferences.
One important outcome of the privatization option, is that the state does
not govern the establishment and the regulation of ritual baths, save non-
religious aspects (such as safety and quality of the water used). Every woman
can search for and locate a ritual bath, usually in association with a broader
religious ‘community’ (synagogue, etc), that fits her religious preferences.
Once this is the situation, the entire state-led and court-led dispute disap-
pears, as the state will no longer be directly involved in religious discrimina-
tion.73 Democratic states do not, under regular circumstances, intervene in the
ways in which religious communities regulate themselves, and each religious
that would consist a much needed improvement over the current system. We discuss both
options, without indicating an obvious prioritization. The reason is that while privatiza-
tion enjoys the support of many theoretical arguments, it is probably further away in the
context of feasibility constraints. Evenhandedness suffers more weaknesses as a model,
but is perhaps more feasible. The social struggle surrounding the baths teaches us, that
given the partial successes of the struggle, and even more so its ups and downs, guessing
political possibilities is best left to those actually involved in such social struggles.
73 Obviously, religious associations would replace the state, and these will make religious-
based distinctions. However, such distinctions are part and parcel of freedom of religion
and association, and extreme circumstances aside, do not give rise to a legitimate state
interference. (see A. Koppelman and T.B. Wolff, A Right to Discriminate (New Haven:
Yale u.p., 2009); Seana Shiffrin, “What is Really Wrong with Compelled Association”,
99(2) Nw. U. L. Rev. (2004), 839–888; Andrew Shorten, “Discrimination and Admissions
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group funds and manages its own religious institutions, baths included. Wom-
en are free to choose this or that ritual bath, and to change their choices if a
given ritual bath is ill-suited to their religious preferences.
Three comments are required here, regarding the idea of a Jewish state (i),
established expectations (ii), and the notion of competition within statist or-
ganizations (iii). We shall take each in turn.
First, to dispel one often heard counter-argument, the fact that Israel is
defined as a Jewish state, does not mean that specific institutional arrange-
ments are ‘natural’ and necessarily follow from the Jewishness of the state. To
point to some obvious examples: from 2003 to 2008 the ministry of religious
services ceased to exist; the magnitude of commercial activity taking place on
Saturdays in Israel, comparing it to the reality in (say) the 1960s has increased
dramatically; laws and policies regarding the breeding, owing, selling and eat-
ing of pigs in Israel were amended various times. All these examples illustrate
clearly that no institutional arrangement follows ‘naturally’ from the notion of a
Jewish state.74 Furthermore, ‘Jewishness’ is an essentially contested concept,75
and this inherent contestation becomes more apparent as non-Orthodox Jew-
ish denominations are growing in Israel, as are feminist-Orthodox challenges
to the Chief Rabbinate.76 The implication here is that Jewishness as a concept
cannot support a single institutional arrangement, which sides with one theo-
logical view, there are simply too many meanings of Jewishness, with the con-
comitant social groups.
Now, a natural question will arise: how will such considerations, leading to
the adoption of the privatization model (including the multiple meanings of
Jewishness) affect other institutions of religion-state relations in Israel. While
our article focuses on the contested issue of ritual baths, the occurrences de-
scribed in Section A above would sound familiar to anyone who studied other
aspects of institutionalized religion in Israel, for example the regulation of
in D
enominational, Faith and Parochial Schools”, paper presented at the ecpr Joint Ses-
sions, Nottingham (April 2017).
74 Ben-Porat, G. (2013), ibid; Nahshon Perez (2013), ibid; Daphne Barak-Erez, Outlawed Pigs
(Madison: U. of Wisconsin Press, 2007) ; Jobani, Yuval. “Three basic models of secular
Jewish culture.” Israel Studies 13.3 (2008): 160–169; Jobani, Y. (2016). The Lure of Heresy:
A Philosophical Typology of Hebrew Secularism in the First Half of the Twentieth Cen-
tury. The Journal of Jewish Thought and Philosophy, 24(1), 95–121.
75 W.B. Gallie, “Essentially Contested Concepts”, 56 Proceedings of the Aristotelian Society,
New Series (1955 – 1956), 167–198.
76 See the sources cited in fn. 27 above.
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Kashrut or the management of the Western Wall.77 However, while a simple

‘cutting the Gordian knot’ approach might seem appealing, i.e. recommend-
ing the privatization of the entire range of state funded religion-state insti-
tutions in Israel, the current research advises otherwise – the functioning of
statist-religious institutions is often complex and nuanced, especially as it cre-
ates established expectations by the population (see next point). We therefore
prefer a piecemeal approach to a wholesale social theory argumentation, and
simply indicate that while it is well established that some of the arguments for
privatization (and for that point, evenhandedness), are perfectly applicable to
other parts of institutionalized religion in Israel, a careful thinking of the cir-
cumstances of each such institution is required before specific argumentation
regarding amendments is made possible.
Second. A relevant concern is that the population in Israel is used to – in the
sense of having established expectations – enjoying the services of the state-
funded ritual baths. This is especially true in small communities, in which the
cost of operating a ritual bath might be prohibitive, making the relevant popu-
lation dependent on the religious associations to which they belong.78 This
argument certainly deserves attention, as privatizing ritual baths would intro-
duce changes in the behavior of some Orthodox women, as they expect that
they will have immediate and inexpensive access to a ritual bath (this easy ac-
cess does not include other women however, feminist-Orthodox, conservative
and reform women are blatantly ignored in the current system, as described
in Section A above). It is important to note, however, that the argument about
established expectations is not an argument that supports the current system,
rather, it is an argument in favor of a properly designed even-handed model (as
discussed in the next sub-section).
The reason is as follows. Democratic states owe their citizens equal concern
and respect.79 A system which functions in a religiously discriminatory fashion
is impermissible. It is, so to speak, outside of majority decisions.80 This point,
it is important to indicate, won clear support from the Israeli Supreme Court
on various occasions regarding the equitable provision of religious services,
77 On the Western Wall see Jobani and Perez (2017), ibid; on the Kashrut framework, see
Aviad Bakshi and Neta Shapira, Kashrut in Israel: an Analysis and a Proposal for Institu-
tional Amendment, policy paper 23 (Kohelet Forum, Jerusalem 2016).
78 Note however, that the dominant view in contemporary sociology of religion is that priva-
tization leads to an increase of religious activity, see Roger Finke and Rodney Stark, “Reli-
gious Choice and Competition”, 63(5) American Sociological Review (1998), 761–766.
79 Following Dworkin’s famous formulation: Dworkin (1977), ibid.
80 We follow, here, Thomas Nagel, “Moral Conflict and Political Legitimacy”, 16(3) ppa (Sum-
mer, 1987), 215–240.
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and is not only based on sources in legal and political theory.81 In other words,
the wish of some of the current clientele to maintain the status of the baths as
a public service, is a legitimate wish only if this service will be allocated in an
equitable fashion, and established expectations should not be confused with
legitimate expectations.82
Finally, some might agree with our description of the Chief Rabbinate, yet
argue that perhaps it is possible to redesign the provision of religious services
in this case, so as to include competition between, or within each ritual bath.83
The argument here is familiar from the literature in public administration. As
Julian Le Grand argued in his ‘the Other Invisible Hand’,84 one can try to in-
tegrate competition and the ability to exit as powerful motivating mechanics
of organizational improvement into, or within the public service system. This
can be an option applicable to say, public schools via the opening of school
districts to competitive enrollment. However, this option would be highly
complicated in the case-study of ritual baths due to the fact it would force the
government into an entanglement with religion, in the context of an intricate
and subtle religious service. The avoidance of this entanglement altogether in
the privatization model is a major advantage of this model, as compared to
evenhandedness, to which we now turn.
C.2 Evenhandedness
What the evenhanded model would imply in the ritual baths case-study is a
non-trivial issue. Seemingly, this is quite straightforward: under this model, the
state has to allow all relevant, recognized religious groups fair access to the
81 See Administrative Appeal 5875/10 Masorti Movement v. Religious Council of Beer Sheva ;
Akiva Nof v. The State of Israel 205/94 Israeli Supreme Court (1994), the latter is discussed
in Nahshon Perez, “Cultural Requests and Cost Internalization: A Left-Liberal Proposal”,
35(2) Social Theory and Practice (2009), 201–228.
82 For an extended discussion, see John Rawls, A Theory of Justice. (rev. ed.) (Cambridge: ma:
Harvard u.p., 1999), 273–277; Alexander Brown, “A Theory of Legitimate Expectations”,
Journal of Political Philosophy, doi: 10.1111/jopp.12135 (first view online) (2017).
83 Depending on the size of the relevant ritual bath. For example, baths within Jerusalem
will compete for customers. If service will be substandard, women will go to mikveh X
with better service and amenities and not to mikveh Y. Within a specific mikveh, women
can prefer certain attendants and request that a certain balanit supervise their immersion
rather than another. This already happens to a certain extent. For example, some women
from Jerusalem prefer to immerse in the communities of Gush Etzion (approximately
30 mins. drive away) where the attendants are more tolerant of unsupervised immersion.
84 Julian Le-Grand, The Other Invisible Hand (New Jersey: Princeton u.p., 2007).
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ritual baths, upon the various uses of such baths. i.e monthly immersion, pre-
marriage immersion, and immersion required for conversion to Judaism.
However, this option, as can be expected, will require much effort from the
government, and poses considerable complications from both the governmen-
tal and religious ‘sides’. As mentioned above, the first step is to identify and
recognize the relevant religious groups who will be entitled to gain access to
the ritual baths.85 Obvious candidates are Ultra-Orthodox, Orthodox, Conser-
vative and Reform Jewish groups. Each one of these groups includes subgroups
and internal divisions. The sizes of the groups are not static, and there is con-
siderable rivalry and animosity between them.
This step already is complex: the solution reached above, of ‘don’t ask, don’t
tell’ is foreign, and indeed contradicts the basic idea of evenhandedness. The
basic premise of evenhandedness is that the state remains unidentified and
impartial towards different religious groups and subgroups, while funding re-
ligious services via an equitable calculation or matrix. ‘Don’t ask don’t tell’ is
opposed to the evenhanded ethos, and strongly implies a hierarchy: a ‘normal’,
accepted immersion method, and tolerated, yet obviously inferior method of
immersion. This means a state which adopts a given religion (or one interpre-
tation of a given religion) as the one true religion, and hence is a non sequi-
tur. An evenhanded model must mean that state-funded ritual baths would
be openly and clearly welcoming places for all the noted religious sub-groups.
Under an evenhanded model the current fashion in which state run ritual-
baths are managed in Israel would have to change. Since the Chief Rabbinate
is de-facto an Ultra-Orthodox institution, and there is no reason to think it
would suddenly become an egalitarian, religious services provider, a different
state agency would have to provide religious services, if anything similar to
evenhandedness is to be achieved.86 Under this scenario, baths will provide
services to all recognized Jewish religious groups, including functions such
as immersion and conversion, under the guidelines of this egalitarian, new
state agency.87 Given the animosity of the Ultra-Orthodox (and their p olitical
85 This point requires a brief clarification – women not belonging to such recognized groups
will not be banned from entrance or usage, but the baths will not be under a legal obliga-
tion to respect and provide services that correspond to the religious norms according to
which they behave. Such a legal obligation will exist for the recognized religious groups.
86 Despite the fact that the Chief Rabbinate is subordinated to the Ministry of Religious
Affairs; a state organ. However, the description above alludes to the actual way this state
organ functions.
87 An interesting parallel is the yet-to-be-established multi-denominational council in
charge of the egalitarian third plaza of the Western Wall (see, Jobani and Perez (2017),
ibid, ch. 2). The fact that this council has not yet been established despite a governmental
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ower) towards reform and conservative Jews, this ‘open to all ritual baths’ sce-
p
nario would face considerable feasibility challenges.
However, even if such a step is conceivable, it would involve entanglement
of state with religion. This implication would become clear once we attempt to
imagine such a shared arrangement: women belonging to different denomina-
tions wish to use the ritual baths in different fashions, in somewhat different
traditions, being served at the same place, in somewhat overlapping times, all
served by the same balanit.88 This complexity is even more evident in conver-
sions, as explained above.
Deciding between such claims would mean that some non-religious entity,
such as a ministerial committee, or a court of law would have to adjudicate and
reach decisions with regard to the best way to run the ritual bath. It is hard to
imagine any method of reaching such decisions without the decision making
institution, regardless of its identity, making evaluations regarding centrality
of religious claims to a given religious group or subgroups. This is the scenario
that Scalia warned against, as quoted above, and if well understood, will ex-
pectedly be strongly disliked by both the government (who would face a mis-
sion foreign to its more mundane roles) and the noted religious groups (who
would view such decision making as a violation of their autonomy).
One way to demonstrate the difficulty of the noted entanglement is via a
brief discussion of the status and duties of the balanit in an ‘evenhanded ritual
bath’ scenario. Here, we can point to a helpful distinction made by legal theorist
decision from January 2016 (recently canceled by the government in summer 2017), fol-
lowing fierce Ultra-Orthodox objections, speaks volumes to the considerable feasibility
constraints facing the implementation of an evenhanded style solution to state funded
ritual baths.
88 Some might argue that as the services relating to immersions are somewhat similar for
most Jewish denominations, the evaluation suggested here is overly pessimistic. However,
a brief look at the obstructionist, at times violent reactions of Ultra-Orthodox women and
men vis-a-vis reform and conservative women at the Western Wall, indicate that if any-
thing, it is not pessimistic enough. Note that in the privatization model, such collisions
will be avoided, as each faction will establish its own ritual baths. (for some recent reports
on the noted obstructionist activities of Ultra-Orthodox at the Wall, see, for example:
Debra Kamin, “Facing jeers and whistles, Women of Wall forced to back of Kotel plaza”,
Times of Israel, August 7 2013), <http://www.timesofisrael.com/facing-jeers-and-whistles-
women-of-wall-forced-to-back-of-kotel-plaza/?fb_comment_id=215132985277286_520
716#f19088fd0c358fc>; Times of Israel Staff, “Hecklers attempt to drown out shofars at
Women of the Wall service”, Times of Israel, September 4 2016 <http://www.timesofisrael
.com/hecklers-attempt-to-drown-out-shofars-at-women-of-the-wall-service/>). See gen-
erally: Perez, Nahshon, (2014), “The Limits of Liberal Toleration: the Case of the Ultra-
Orthodox in Israel”, Journal of Church and State, 56 (2): 223–247.
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M. Dan-Cohen, between detached and undetached roles. As he writes: “When

I fully identify with a role, when the role distance, to further exploit the spatial
metaphor, is down to zero, I enact the role “transparently”—that is, without
an explicit awareness of the role’s requirements and the fact that I fulfill them.
By contrast, the presence of role distance is marked by self-consciousness: by
an explicit awareness that I engage in playacting; that I enact a certain role by
responding to its requirements and expectations”.89
Detached roles are usually acted upon, or can be found in organizational
contexts, while undetached roles are usually found within communities. Jane
the accountant is playing a detached role when she enters her office, however
when she is a part of a close circle of parents planning an event with their
children (where everybody knows everybody and the children will enjoy be-
ing together) she is virtually un-separable from the role of a parent and friend.
An undetached role, such as a role played within one’s religious community,
enjoys, or is eligible to the protections awarded to (broadly conceived) one’s re-
ligious liberty. Detached roles do not typically merit such a defense. A religious
public servant at the irs would provide services to members of other religions;
a member of the clergy of religion X should not be expected to provide reli-
gious services to members of religion Y, under an adequate evenhanded model
(that is, even if employed by the state).90
When an attempt is made to classify the role of the balanit as detached or
un-detached from her role, we encounter a difficulty. Some view her role as un-
detached: that is, it is dissimilar to (say) a cashier in a supermarket, and more
similar to that of a member of the clergy. According to this view, she is not just
a person providing a clear set of services, rather she is more like a member of
a religious community. Others however, will view her role as detached, similar
to a ‘job’ or ‘occupation’, (e.g. an accountant or a cashier in a supermarket) in
which a given person ‘plays a part’, and has little emotional attachment to the
role played while working. This disagreement cuts across religious groups, and
depends on religious and social views, descriptions and conventions.91
89 Meir Dan-Cohen, Harmful Thoughts (N.J.: Princeton u.p. 2002), 14.

90 This point touches on the sensitive and complex topic of the contours of religious liberty
within religious services provided by the state, a full discussion is not possible here, see
Patten (2014), ibid; Jobani and Perez (2017), ibid, ch. 4; Shahar Lifshitz, “Civil Regulation
of Religious Marriage from the Perspectives of Pluralism, Human Rights, and Political
Compromise” in L. Batnitzki and H. Dagan (eds.), Institutionalizing Rights and Religion
(Cambridge: Cambridge u.p., 2017), 184–205; Eugene Volokh, “Freedom of Expressive
Association and Governmental Subsidies” 58 Stanford Law Review (2006), 1919–1968.
91 In making the noted evaluation, we consulted with numerous individuals who are knowl-
edgeable about, and have personal connection with, the work of balaniyot.
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This hard-to-solve disagreement serves well to demonstrate the point Scalia

made above – if such a disagreement arises, any decision made by the state
will involve religious decision making. Some of the options include declaring
the balanit to be ‘detached’, and therefore under an obligation to serve patrons
belonging to different religious communities; another alternative is to accept a
description of the balanit as having an undetached role, yet declaring the spe-
cific, expected religious preference, not to serve members of religious groups
different than the one to which the balanit belongs, as peripheral (not central),
and to insist that she serves members of different religious communities (or be
fired); lastly, some might view her role as both undetached and her expected
preference to refuse service to members of other religious groups as a legiti-
mate request, and as an adequate protection of her religious liberty rights.
Now, the point here is not to locate a solution to this ‘classification prob-
lem’, rather it is to indicate that in the evenhanded model, the state will reach
such a decision/solution, while in the privatization model this decision will be
made by each separate religious group.92 One disadvantage of the evenhanded
model is that it requires some state organ to reach such decisions, running the
danger that the state will override and even violate religious freedom.
This point has some implications, most importantly, it complicates any
evenhanded solution. It burdens the state with the need to make a series of
religious based distinctions and decisions, some of which include: is it reason-
able to request, as a matter of a job description, from a given balanit to serve
the members of a religious community to which she does not belong, even if
this is a religious community which has religious norms that are foreign or in
contradiction to the religious norms of the community to which she belongs?
Consider another question: the balanit is not a rabbi, and she is much less se-
nior in the Jewish denominational hierarchy. Does less seniority of position
within a religion or denomination hierarchy affect one’s rights to religious free-
dom? (and, thinking more broadly and comparatively, what would this mean
in a context of, say, the distinction between a deacon and a priest in some
Christian denominations?).
This brief examination of the difficulty in properly classifying the role of
a balanit (as just one example to such difficulties that would exist in many
other cases of religious services provided by the state under this model) dem-
onstrates that an evenhanded model would have to suggest a complex model
92 There will be some cases in which states, which adopt the privatization model, will en-
counter similar dilemmas, but such occurrences will be more frequent (put mildly) in
evenhanded models (see: Kent Greenawalt, Religion and the Constitution (Vol. 1) (New
Jersey: Princeton u.p., 2009), ch. 12).
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of state obligations and capacities – a state that is able to reach decisions in

such complex matters – over and over again. While perhaps not impossible, it
would certainly be expensive and complex. The avoidance of such complexity
and entanglement, while not quite a trump card for the privatization model, is
certainly an important consideration in favor of the privatization model.
Conclusion
This essay describes a fierce controversy regarding state-funded ritual baths in

Israel, and examines two distinct models of religion-state relations: privatiza-
tion and evenhandedness, as suggested solutions to this dispute. The first part
of the essay is dedicated to a description of this controversy, in which many
observant Jewish women were treated in a discriminatory, autonomy-violating
ways. This unacceptable treatment is the direct result of the divisive fashion in
which the state agency in charge of said baths, the Chief Rabbinate, chose and
enforced one particular interpretation of Jewish religious law, and eventually
brought about a women-led social struggle. This struggle, in turn, succeeded –
albeit in a limited fashion – in bringing about some improvements in the ways
women were, and still are, treated in the noted baths. For example, banning
the immersion of unmarried women was replaced by a policy permitting the
immersion of unmarried women, as long as ‘don’t ask don’t tell’ is maintained.
Following the presentation of this seldom-studied case-study, two models
of religion-state relations were presented, as potential solutions for the prob-
lems associated with this case: privatization, in which the state ceases to pro-
vide and fund ritual baths, and the provision of such baths is relocated to the
civil society; and evenhandedness, in which the state continues to provide and
fund ritual baths, however, in an egalitarian fashion. While prioritization be-
tween the suggested models and their institutional implications presents a dif-
ficult challenge (due, among other considerations, to the difficulty of correctly
estimating feasibility constraints), it was pointed out that the complexity and
entanglement characteristics of the evenhanded model serve as important re-
minders to the advantages of the privatization model.
Acknowledgement
The authors wish to thank Elad Caplan for his advice and Ruth Klein for
research assistance
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7 (2019) 213-241
brill.com/jlrsx
What if? An Experiment to Include a Religious

Narrative in the Approach of the European
Court of Human Rights
Anicée Van Engeland
AQ1 Senior lecturer, Centre for International Security and Resilience,
Cranfield University
Abstract
According to some interpretations of Islam supported by gender activists, the veil

can be perceived as a passport that enables women to participate in public affairs.
This argument has been overlooked by the courts, including the European Court of
Human Rights. The latter has adopted a discourse that considers the veil to be a threat
to public order and gender equality, and more recently, an obstacle to social cohesion.
By doing so, the Court has excluded veiled European Muslim women from the public
sphere. The Court has justified curbing freedom of religion by granting states a wide
margin of appreciation on the basis of the concept of “living together.” I argue that the
Court needs to take the “passport veil” into account to be consistent with its argument
on living together. A shift of approach and discourse would constitute a new way of
understanding integration through the veil.
Keywords
European Court of Human Rights – Islam – veil – social cohesion
1 Introduction
Recent cases have shown that veiled Muslim women face challenges in the
European public sphere.1 In the name of social cohesion, or of “living together,”
1 See, e.g., Cass., Soc., 19 Mars 2013, Mme Fatima X…, épouse Y… c/ L’Association Baby Loup,
No 11-28.845; the s.a.s. v. France 43835/11 echr (01 July 2014); the decision of the Spanish
0004285752.INDD 213 204331 3/4/2019 12:58:18 PM

214 Van Engeland
le vivre ensemble, as referred to by French and Belgian authorities, they are en-
couraged to integrate into society. The relevant domestic and European case
law, however, has indicated that women wearing a full or partial veil (all cat-
egories and types included, from the chale to the burqa) have limited women’s
access to education and work.2 Muslim women are consequently caught be-
tween two prohibitions: one dictated by expectations and demands stemming
from their beliefs or their community, the other dictated by courts, such as the
European Court of Human Rights (ECtHR), and by domestic law.3 Women are
told both to veil and not to veil, and their access to the public sphere is moni-
tored, if not restricted. As a result, it seems that European Muslim women who
wear the veil are expected to choose between their beliefs and integration.
They are torn between “overlapping systems of identification.”4 This is not a
new phenomenon, and it was already denounced in the context of colonialism
by those like Fannon in his mask analogy.5 The novelty resides in the attempt
to resolve this tension by encouraging courts to consider alternative readings
of the veil. The aim of this article is to encourage legal professionals to embrace
a scenario in which the veil is understood as contributing to women’s empow-
erment rather than as a threat to equality or national security. The article relies
on Muslim feminists’ writings that provide interpretations seeking to reconcile
faith with gender equality . The veil then becomes a passport (I call it a “pass-
port veil”), enabling women to cross the border between the private and the
public spheres, the religious and the secular spheres, all along respecting their
own values. Such an interpretation could make it possible for courts to view
the phenomenon of the veil differently.6
This article forms the basis for an experimental testing of the attitude of
a secular court toward the religious narrative of the veil as a tool of women’s
S upreme Court overturning a city ban on face-covering veils in municipal buildings (Aso-
ciación Watani para la Libertad y la Justicia v. Lleida, Tribunal Supremo, Sala de lo Contencio-
so-Administrativo, Sección: Séptima, 06 Febrero 2013, Recurso casacion Numero: 4118/2011);
and B and M v. Secretary of State for the Home Department [2013] ewhc 2281 (Admin).
2 See ECtHR decisions: Karaduman v. Turkey, App. No. 16278/90, 74 Eur. Comm´n H.R. Dec &
Rep 93 (1993); Dahlab v. Switzerland, 42393/98 [2001] Eur Ct H R 449 (15 February 2001); Şahin
v. Turkey, 44774/98 [2004] Eur Ct H R 299 (29 June 2004).
3 For example, the French law criminalizing the wearing of face veils: loi n° 2010–1192 du 11
October 2010 interdisant la dissimulation du visage dans l’espace public.
4 Ayelet Shachar, “Privatizing Diversity: A Cautionary Tale from Religious Arbitration in Family
Law”, 9(2) Theor Inq Law (2008), 573.
5 Frantz Fanon, Black Skin, White Mask (1952).
6 Will Kymlicka and Raphael Cohen-Almagor, “Democracy and Multiculturalism”, in R. Cohen-
Almagor (ed.), Challenges to Democracy: Essays in Honour and Memory of Isaiah Berlin (2000).
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Approach of the European Court of Human Rights 215
empowerment. To frame this scenario, I need to set aside set aside existing
interpretations of Article 9 of the European Convention on Human Rights
(echr) by the ECtHR, which has prevented accommodating the veil. I sug-
gest changing the way we perceive religion, and move toward accommodation,
seeking to understand how religion can play a positive role when interpreting
the Convention.7 This experiment represents an opportunity to promote cul-
tural diversity in the judicial narrative.8 The ECtHR, for example, in Chapman
v. the United Kingdom,9 has referred to the concept of cultural diversity. The
article seeks to put into action the judges’ words in the Chapman case, where
they considered the protection of the lifestyle and identity of minorities as
“a cultural diversity of value to the whole community.”10 I therefore challenge
existing limitations when adjudicating minorities’ issues in courts by asking
“what if?:” What if the ECtHR were to consider an internal religious narrative
such as the one promoted by Islamic feminists? What benefits could be reaped
from listening to other ideas and perspectives on the veil? I believe that secular
judges, guided by experts, can understand Muslim women’s pleas and prac-
tice multiculturalism while engaging with interculturalism in courts and their
judgments. Some British courts have considered such narratives, as demon-
strated by the decision in 2017 that led a judge to severely limit visitation rights
of a transgender woman on the grounds that it would cause harm to children
belonging to a Jewish ultra-Orthodox community.11 My argument is to be un-
derstood as a contribution to multiculturalism, looking at a judicial effort to
protect veiled European Muslim women, and to interculturalism, considering
the role of the judiciary in supporting the circulation of other views and the
evolution of culture through law. Both multiculturalism and interculturalism
can be achieved by taking into account internal religious perspectives that are
called to play a role in a secular environment.
The ECtHR constitutes an excellent forum for this experiment. The aim is
not to establish the ECtHR as the authoritative body when it comes to deciding
on Muslim issues, nor to institute a neo-imperialist approach that could lead to
European judges deciding what Islam is. The ECtHR is intended to protect hu-
man rights, operating in a secular environment while deciding, among others,
7 George Letsas, “Accommodating What Needn’t Be Special”, 10(2) L. & Eth. H.R. (2016), 319.
8 See the 2001 unesco Universal Declaration on Cultural Diversity: http://portal.unesco
.org/en/ev.php-URL_ID=13179&URL_DO=DO_TOPIC&URL_SECTION=201.html
9 Chapman v. the United Kingdom, 27238/95 [2001] Eur Ct H R 43 (30 January 2001).
10 Ibid., § 93.
11 J.B. and The Children (Ultra-Orthodox Judaism: Transgender) [2017] ewfc 4, 30 January
2017.
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216 Van Engeland
on religious issues. It finds itself in a unique position, having to examine sub-

jective considerations with regard to religion, culture, and traditions, while up-
holding the democratic and human rights values enshrined in the echr. The
Court has reviewed such cases applying tests like the margin of appreciation. It
is therefore in a position to hear the internal religious perspective of European
Muslim women while protecting European values, practicing multiculturalism
and interculturalism on the basis of a cross-cultural dialogue.
This experiment calls for a reappraisal of the stories of Senay Karaduman,
Lucia Dahlab, and Leyla Şahin (to name a few), each of whom sought to grad-
uate, work, or receive an education, but was denied the opportunity by the
ECtHR. Most Muslim women living in Europe seek to be empowered and want
to contribute to society. One of their strategies is to redefine their identities
that have become plural: they need to accommodate Islam with the values
of the country they live in, working at two levels.12 I suggest that the judges
should have considered alternative religious narratives, while honouring the
principles laid out in the Convention. My argument in this experiment is that
law-making could rely on contextualized gender views.13 Having established
that Islamic feminism and the passport veil could provide a culturally or reli-
giously sensitive solution to the integration of Muslim women, I argue that the
ECtHR should be encouraged to look at gender and Islam from an inclusive
perspective, concentrating on contextualized needs, which in turn can lead to
a consideration of Islamic feminism.
2 Gender Jihad: Addressing Muslim Women’s Rights
To sustain the argument that an internal religious perspective should be con-

sidered by a secular court, it is necessary to understand this religious narrative’s
role vis-à-vis some European Muslim women, with reference to empowerment.
This part also outlines the strategy of the passport veil, a term I propose to use.
2.1 Islamic Feminism and the Passport Veil

Islamic feminism exists throughout the Muslim world, and its supporters have
achieved some important breakthroughs. They use Muslim legal techniques to
examine sources of law from a gender-oriented perspective, then reinterpret
12 Amber E. Kinser, “Negotiating Spaces for/through Third-Wave Feminism”, 16(3) nwsa

Journal (2004), 124.
13 Hillary Charlesworth and Chirstine Chinkin, The Boundaries of International Law: a Femi-
nist Analysis (2000), 62.
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the tradition in light of gender equality. The benefit of referring to Islamic texts
is that it enables women to seek equality and empowerment within the Islamic
framework, remaining faithful to their religious beliefs and identity while look-
ing for what they believe is duly theirs in Islam. As summarized by Wadud,
Islamic feminisms (there are different approaches to feminism in Islam), are
gender policies that encourages women’s active participation in the tradition,
so that their needs, realities, and experiences can be reflected in their interpre-
tations; it is about how we live vs. how we are supposed to live.14 Islamic femi-
nism provides a context for the passport veil: the narrative advanced by these
gender activists is grounded in the reality of many Muslim women, reflecting
their needs or expectations. This is why the ECtHR should look into Islamic
feminism when appraising the veil: it would help explain how some European
Muslim women approach their own religion and understand their contribu-
tion as citizens. Understanding the passport veil helps contextualise certain
claims made by some of the veiled women seeking adjudication of their claim
that the veil is a liberating tool.
Part of the argument on the passport veil as a liberating tool is the use of
the veil to cross borders, or walk along the boundary that separates the pri-
vate sphere from the public sphere. Here, the private sphere is defined as the
family, friends and community. In the private space, one can contribute to the
“production and performance of cultural identities.”15 The public space in-
cludes streets, shops, as well as areas that are vetted by the community, such as
mosques. Yet this distinction is somewhat unhelpful when it comes to Islam as
what happens in a public space such as a mosque can influence the behavior
of a woman at home. The public/private narrative is therefore multidimen-
sional and I have adapted it to this article so that the public sphere remains
the space where veiled Muslim women interact with the state.16 When using
the passport to cross the border between the private and the public, women
introduce a new narrative into the environment of the state as they seek to
14 Amina Wadud, “Islamic Feminism”. Paper presented at Cornell College. 22 April 2010.
Retrieved 15 February 2017, http://news.cornellcollege.edu/2010/04/amina-wadud-talks
-about-islamic-feminism/.
15 Ayona Datta, “Making Space for Muslims: housing Bangladeshi families in East London”,
in R. Phililips (ed.), Muslim Spaces of Hope: Geographies of possibilities in Britain and the
West (2009).
16 Shachar noted that the threshold for crossing from the private to the public is far from
clear, and cited the work of Frances E. Olsen, “The Family and the Market: A Study of
Ideology and Legal Reform”, 96 Harv L Rev (1983), 1497, in Ayelet Shachar, “On Citizenship
and Multicultural Vulnerability”, 28:1 Pol Theory (2000), 64–89.
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218 Van Engeland
construct their own identity in the public space.17 Against this backdrop, the
public space becomes a location where the state is deployed and where the
majority rules, as clearly stated by the Court when using the “living together”
yardstick in the case law analyzed below. Negotiating the passage from the
private sphere, where the family and the community are often omnipresent,
to the public space, which is often somewhat secular, presents different chal-
lenges for men and women. Crossing the borders can prove awkward for both
if external signs of belonging are present in the form of a veil or some other
pieces of clothing.
Besides reading the intentions of the Prophet and looking into the philoso-
phy of Islam with regard to gender equality, Islamic feminists insist on tak-
ing into account the context in which women live. Wadud suggested that the
veil is to be understood within the culture and the context;18 she analyzed the
meaning of the veil in each context and went through the phases of veiling
and unveiling that an individual experiences. This demonstrates the diversity
of the motivations for wearing the veil.19 These motivations were exposed in
the sas and the Belcacemi and Oussar cases.20 Fakhro suggested using Sharur’s
theory of the maximum and the minimum of tolerable limits of acceptability,
to check whether the veil is to be worn in a certain context: a naked woman
and an entirely covered woman are outside the spectrum of respectability, and
a woman must adapt her veiling to the context in which she lives.21 This ap-
proach demonstrates the array of possibilities when it comes to accommodat-
ing the veil.
Can this form of empowerment provided by Islamic feminisms serve some
European Muslim women, especially before the courts? Or is this struggle for
gender equality too specific to Islam, and incompatible with the mission and
purpose of the ECtHR?
2.2 Emancipation and the Veil

Part of the perception of the veil as an instrument for emancipation is a reac-
tion to recent history, when the veil was either perceived as an instrument of
17 Caroline Nagel and Lynn Staeheli, “British Arab Perspectives on religion, politics and the
‘public’”, in P. Hopkins and R. Gale (eds.), Muslims in Britain: Race, Place and Identities:
Race, Place and Identities (2013), 96.
18 Amina Wadud, Qur’an and Woman: Rereading the Sacred Text from a Woman’s Perspective
(New York, 1999).
19 Wadud, supra note 35.
20 Belcacemi and Oussar v. Belgium, 37798/13 [2017] Eur Ct H R (11 July 2017); Dakir v. Bel-
gium 4619/12 [2017] Eur Ct H R (11 July 2017).
21 Munira Fakhro, “Gulf Women and Islamic Law”, in M .Yamani (ed.), Feminism and Islam:
Legal and Literary Perspectives (1996), 253–254.
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resistance or as a means of preventing empowerment, as illustrated by the 2010

French law. The veil as a passport is a radically different approach: it describes
the veil as being owned by women. Rather than being part of a nationalistic
discourse in a (post-) colonial environment, Muslim women have given a new
meaning to being veiled, considering it as the opportunity to cross borders,
and thus becoming autonomous individuals and citizens. This perception
builds on the idea that the veil “form(s) part of Muslim women’s character, be-
haviour and identity.”22 In this regard, the passport veil empowers us to think
of veiled European Muslim women as individuals, rather than analyzing them
from a collective or Euro-centric perspective. Therefore, women should not be
considered objects on which we project our theories about emancipation or
resistance, which is why it is important to consider alternative theories such as
the one of the passport veil.
This is the context in which some Islamic feminists think about the veil as
an empowering instrument: the veil should be interpreted first as a choice,
then as a way of gaining societal mobility. As submitted by sas in her case at
the ECtHR, the idea that a woman covering her face is “incompatible with the
principle of gender equality […] is simplistic. She added that the wearing the
veil could denote emancipation, self-assertion and participation in society; far
from wearing the veil to reinforce patriarchy, sas believes she did it because
of her own faith and stated that she was being “denied the right to exist as in-
dividuals in public, when in the majority of cases it was worn voluntarily and
without any proselytising motive.”23 In Belcacemi and Oussar v. Belgium, both
women explained that they wore the full veil by choice.24 Ms. Dakir expressed
the same motivation and choice.25 Both appellants also explained the effect
that the Belgian law had on their lives, effectively depriving them of the pass-
port that would enable them to cross borders.26 By adopting this strategy of
wearing the veil, Islamic feminists and gender activists challenge the conser-
vative agenda through the reappropriation of “the veil as a means to facilitate
social presence rather than seclusion.”27 Such stances illustrate Shachar’s ar-
gument that there is room for enhancing minorities’ autonomies through the
22 Rajnara Akhtar, “Islam and the Veil: Theoretical and Regional Contexts”, in T. Gabrial and
R. Hannan (eds.), Islam and the Veil: Theoretical and Regional Contexts (2011), 149.
23 sas v France, § 77.
24 Belcacemi and Oussar v. Belgium, § 6.
25 Dakir v. Belgium, § 7.
26 Ibid., § 9–10.
27 Nayereh Tohidi, “The issues at hand”, in H. L. Bodman and N.E. Tohidi (eds.), Women in
Muslim Societies: Diversity Within Unity (1998), 284.
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220 Van Engeland
courts.28 It is to be noted that in sas v France, the Court heard this argument
and rejected the notion that the veil contradicts gender equality, stating that
“a State Party cannot invoke gender equality in order to ban a practice that is
defended by women—such as the applicant—in the context of the exercise of
the rights enshrined in those provisions, unless it were to be understood that
individuals could be protected on that basis from the exercise of their own
fundamental rights and freedoms.”29 The veil is consequently, in many ways,
a symbol of Islamic feminisms, as demonstrated on social media and various
blog entries and articles.30 This is why Ahmed spoke of the Islamic dress as a
sign of “educational and professional upward mobility” and a “practical cop-
ing strategy, enabling women to negotiate in the new world while affirming
the traditional values of their upbringings.”31 She called this empowerment a
“quiet revolution.”32 Indeed, it is when women “reclaim their own cultures, in-
terpreting texts and traditions in self-empowering ways… [that] women may
truly claim their rights.”33 Silvestri notes that while Muslim women battled
against the veil as an imposition, others considered it as “a path to emancipa-
tion, whereby Muslim women assert their right to free choice and stand up
for and articulate their own human rights within a secular context.”34 Kapur
has also said “the veil has also been a very empowering symbol for Muslim
women in some countries… Amongst immigrant communities in the West, it
is the symbol of an exclusive cultural space and a rejection of assimilation.”35
Odeh concluded that “unless I engaged in intellectual elitism and accused
28 Aylet Shachar, Multicultural Jurisdictions: Cultural Differences And Women’s Rights

(2001), 3.
29 sas v. France, § 119.
30 Nadiya Takolia, “The hijab has liberated me from society’s expectations of women”, The
Guardian. 28 May 2012. Retrieved 15 February 2017, http://www.theguardian.com/commen-
tisfree/2012/may/28/hijab-society-women-religious-political; Pina Sadar, “Muslim Femi-
nists reclaim the hijab in fight against patriarchy”, The Conversation. 26 September 2014.
Retrieved 15 February 2017, http://theconversation.com/muslim-feminists-reclaim-the
-hijab-to-fight-the-patriarchy-31126
31 Ibid.
32 Leila Ahmed, A Quiet Revolution: The Veil’s Resurgence, from the Middle East to America
(2011).
33 Mahnaz Afkhami and Haleh Vaziri, Victories Over Violence: Ensuring Safety for Women and
Girls A Practitioner’s Manual (1998), 9.
34 Sara Silvestri, “Unveiled Issues: Reflections From A Comparative Pilot Study On Europe’s
Muslim Women”, City University London Working Papers on Transnational Politics. April
2009. Retrieved 15 February 2017, https://www.city.ac.uk/__data/assets/pdf_file/0016/
84040/CUWPTP005A.pdf.
35 Ratna Kapur, Erotic Justice: Law and the New Politics of Colonialism (2005), 107.
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those women of false consciousness and of not knowing their own good, there
was no way I could point to instances of the disempowerment of the veil.”36
And El Guindi concluded that the veil “is feminist because it seeks to liberate
womanhood.”37
2.3 Of the Use of the Passport Veil

To fully understand the challenge the ECtHR faces when ruling in cases involv-
ing the veil, and to comprehend the scope and stakes of my experiment, it is
useful to understand how the passport veil functions. I suggest that a secular
court consider an internal religious perspective in the name of multicultural-
ism. It is therefore necessary to analyze in depth how a product of that internal
religious narrative works, and to see whether it could be considered by the
courts.
The veil is a complex, subtle, and flexible instrument for negotiating spaces,
borders, and plural identities, and it can empower women in a trade-off, or a
strategic choice as explained by Aksoy and Gambetta.38 The idea of a trade-off
emerges from the work of Abu Odeh, who suggested that veiling was used as
a way for women to prevent sexual harassment in public.39 In such instances,
women use the veil for a given purpose and with the view of gaining a certain
outcome.40 Therefore, rather than limiting myself to the veil as a metaphor for
Muslim women,41 I use it as a tool for negotiating freedom, which why I speak
of crossing borders. To contextualize this trade-off is to argue that European
Muslim women wear the veil, and in return expected the opportunity to play
a social role in a secular sphere while upholding their religious beliefs. This
is well expressed by the Belgian women who lodged an application with the
ECtHR against the 2011 law that banned veiling: one of them had chosen to
remove her veil during the proceedings to be able to keep entering the public
space. Her rational was that she had family responsibilities that meant she had
to be visible in the public space and it has seemed to her best to remove her veil
36 Lama Abu Odeh, “Post-Colonial Feminism and the Veil: Considering the Differences”,
26 New Eng. L. Rev. (1991–92), 1527, 1532.
37 Fadwa El Guindi, Veil: Modesty, Privacy and Resistance (1999), 184.
38 Ozan Aksoy and Diego Gambetta, “Behind the Veil: The Startegic Use of Religious Garb”,
6:1 Eur Sociol Rev (2016), 792.
39 Abu Odeh supra note 80, 1530–1531.
40 Lila Abu-Lughod, Remaking Women: Feminism and Modernity in the Middle East (1998),
252.
41 Susie Hawkins, “The Essence of the Veil: The Veil as a Metaphor for Islamic Women in
Voices”, in E. M. Caner (ed.) Behind the Veil: The World of Islam Through the Eyes of Women
(2003), 93–106.
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222 Van Engeland
in the meantime to avoid being arrested or being stigmatised. The other lady
has chosen to keep the veil and realise that she couldn’t leave her home as her
passport veil had been removed from her.42
The circumstances of the trade-off must be understood so that empower-
ment can logically follow from them: for women for whom the veil is compul-
sory, this trade-off means access to public space.43 The veil gives them a degree
of autonomy through the protection it grants, without fear of community or
family sanctions.44 This autonomy creates room for empowerment, provid-
ing women access to employment and education.45 The trade-off empowers
women further when they cross the border back from the public to the private
space. Duval described an increase in mobility:46 having been exposed to the
“other” in European secular spheres, Muslim women are empowered to nego-
tiate at home, and even defy authority.47 These women indicate that wearing
the veil is a way of complying with family or community expectations, expect-
ing in return some recognition in the private sphere.48 This could lead to a
renegotiation of gender relationships.49 This trade-off is illustrated by veiled
young women attending universities in exchange for postponing marriage. For
women who have willingly embraced the veil, veiling becomes a way of assert-
ing their cultural or religious identity while integrating50 in Western society
and taking control of their private and public lives.51 With access to the social
sphere, the trade-off could play a constructive role in building integration and
citizenship: the veil helps create a negotiated identity.52 This is why veiling is
42 [full reference] Belcacemi and Oussar v. Belgium, § 9–10.

43 Fadwa El Guindi, “Veiling infitah with Muslim ethic: Egypt's contemporary Islamic move-
ment”, 28(4) Social Problems (1980), 465–485, 482
44 Katherine Bullock, Rethinking Muslim Women and the Veil: Challenging Historical & Mod-
ern Stereotypes (2002), 185; Carrie Rosefsky Wickam, Mobilizing Islam: Religion, Activism,
and Political Change in Egypt (2002), 133.
45 Asma Afsaruddin, Hermeneutics and Honor: negotiating female “public” space in Islamic/
ate societies (1999), 19; Soroya Duval, “New veils and new voices: Islamist women’s groups
in Egypt”, in K. Ask and M. Tjomsland (eds.), Women and Islamization: Contemporary
Dimensions of Discourses on Gender Relations (1998), 45–72, 63.
46 Duval, ibid., 63.
47 Afsaruddin supra note 93, 16.
48 El Guindi supra note 91, 79; Afsaruddin, supra note 93, 7.
49 Duval, supra note 93, 63.
50 Ibid., 61.
51 Afsaruddin, supra note 93, 16.
52 Valorie K. Vojdik, “Politics of the Headscarf in Turkey: Masculinities, Feminism and the
Construction of Collective Identities”, 33 Harv J L & Gender (2010), 661–685, 664.
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generally discussed by Muslim feminist scholars in relation to the woman as a

subject, in addition to a discussion with respect to the social fabric.
Crossing borders with the aid of the veil means transcending the private-
public divide. Admittedly, it has at times been associated with other dichot-
omies such as “us/them” or “Muslim/European values.” A source of these
dichotomies is to be found in yet another dichotomy, that of “honour/shame,”
which provides guidelines about how a woman should behave.53 Women are
expected to behave in a way that upholds their honour as well as that of the
family and the community. Crawley summed it up by stating that “dress is the
most distinctive expression in a material form of the various grades of social
life. The biological period thus becomes a social period of existence and the
individual is merged in a functional section of the community.”54 As a result,
the veil has been used to control women’s bodies,55 to separate them from the
rest of the society.56 This control, which could arguably amount to oppression,
has been emphasized in conservative interpretations of Islamic scriptures per-
taining to the veil. This means that the ECtHR is correct when it denounces the
veil as a tool of oppression (as explained below); yet, when the court does so,
it considers only some of the interpretations provided by some Muslim Con-
servative clerics. It examines only conservative readings of Islam, and ignores
Muslim feminist readings. If the judges were to listen to women’s narratives on
empowerment, they would become aware of the fact that by using the veil as a
means to achieving emancipation, women negotiate the framework of shame
and honour. This manipulation of the private/public divide and of other di-
vides is central to feminist resistance57 and crucial to understanding the stakes
in the case of some Muslim women’s path to empowerment. With the passport
veil, Muslim women turn the argument of the veil as an instrument of protec-
tion from the male gaze on its head: they accept wearing it to be protected in
public, and in exchange expect to fully contribute to social activities. The veil
becomes more than a passport to cross the divide; it also becomes a way of
controlling one’s destiny through appropriation of the public space.58 Consid-
ering the passport veil enables us to understand why some women decide to
53 El Guindi, supra note 91, 79.

54 Alfred Ernest Crawley, Dress, drinks and drums (1931), 117.
55 Fatima Mernissi, L’amour dans les pays musulmans (2009), 74.
56 Fatima Mernissi, Women and Islam: A historical and theological enquiry (1991), 178–9.
57 Shirley Ardener, Women and space: Ground rules and social maps (1981), 3; Afsaruddin,
supra note 93, Introduction.
58 Duval, supra note 93, 63.
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224 Van Engeland
appeal to the courts to protect their right to wear a veil: they seek validation
from the state apparatus of their internal narrative.
Although the argument of the passport veil has been presented by appli-
cants to the ECtHR, the Court did not approach the veil as an instrument of
empowerment, but rather as a form of oppression that has a negative effect on
gender equality. By doing so, the Court denied veiled women the opportunity
to pursue personal autonomy through alternative means. The sas v. France
case raised hope for a change, as the Court did not discard the argument of
empowerment, but decided that “living together” superseded it. In subsequent
case law concerning Belgium, in 2017, however, the judges did not elaborate on
the choice made by women, and chose instead to develop the “living together”
concept.
3 Consequences of the Approach of the Court: Stereotyping and

Exclusion
The early case law of the Court demonstrates a stereotyped understanding of

Islam and the veil. It used well-established yardsticks to justify its balanced ap-
proach, finding equilibrium between freedom of religion and state interests, as
the two 2017 cases concerning Belgium demonstrated. In the cases from 2017,
the ECtHR missed an opportunity to develop its view on women’s empower-
ment, choosing instead to develop the concept of living together. This is why
I frame my work as an experiment: I seek to demonstrate what would happen
if the ECtHR were to accommodate a certain religious approach in an intercul-
tural spirit (knowing that others may raise the issue of selecting which inter-
cultural narrative we should listen to), being aware of the subjectivity of the
concept of the passport veil, given that not all Muslims adhere to it.
3.1 Stereotyping the Veil: Overview of ECtHR Case Law

The ECtHR has had to decide on cases involving the veil. It has often done so by
portraying the veil and Islam negatively, as for example in Karaduman v. Tur-
key, where the Commission stated that “where secular universities have laid
down dress regulations for students, they may ensure that certain fundamen-
talist religious movements do not disturb public order in higher education or
impinge on the beliefs of others.”59 This balance, however, has been reached on
weak grounds because the Court opted for a conservative portrayal of Islam, ig-
noring the positive and reformist Muslim elements, such as Islamic feminism.
59 Karaduman v. Turkey, pp. 107–108.
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The Court did not take into consideration the fact that there is a liberal form
of Islam, which could be in agreement with the democratic and human rights
purposes of the echr.
ECtHR jurisprudence also reveals a stereotypical view of the veil. For ex-
ample, it depicts it as “powerful external symbol.”60 Measuring the effect of the
veil on young children when worn by a teacher, the Court stated that:
[I]t cannot be denied outright that the wearing of a headscarf might have
some kind of proselytising effect, seeing that it appears to be imposed
on women by a precept which is laid down in the Koran and which…
is hard to square with the principle of gender equality. It therefore ap-
pears difficult to reconcile the wearing of an Islamic headscarf with the
message of tolerance, respect for others and, above all, equality and non-
discrimination that all teachers in a democratic society must convey to
their pupils.61
The ECtHR viewed the headscarf as the symbol of a religion, which is only one
interpretation of veiling, but which also happens to be the understanding prof-
fered by many conservative Muslim interpreters.62 With such statements, the
Court merely confirms traditional and patriarchal Muslim readings, and can
conclude only that the veil is contrary to gender equality and empowerment.
The Court therefore silenced the women, denying them the possibility to be
autonomous bodies, because they are perceived as being subjected to an ex-
ternal compelling force. The veil is also perceived as a threat to public order. In
Karaduman, the veil was described as an aggressive symbol, capable of creat-
ing social conflict, and wearing the veil could challenge those who do not wear
one.63 In Şahin, it was described as threatening democratic values:
The Court also notes that in the decisions in Karaduman and Dahlab,
the Convention institutions found that in a democratic society the State
was entitled to place restrictions on the wearing of the Islamic headscarf
60 Dahlab v. Switzerland.
61 [ full citation] Dahlab v. Switzerland.
62 For an in-depth analysis of the new hermeneutics on the veil, see the work by the Leba-
nese scholar, Zin al-Din, who found 10 different interpretations of the verses of the Quran
in relation to veiling, as cited in Shabaan (Bouthaina Shabaan, “The Muted Voices of
Women Interpreters”, in Mahnaz Afkhami (ed.), Faith and Freedom: Women’s Human
Rights in the Muslim World (1995), 61–77.)
63 Karaduman v. Turkey, 108.
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226 Van Engeland
if it was incompatible with the pursued aim of protecting the rights and
freedoms of others, public order and public safety.64
Another rationale the Court used to justify its approach to the veil was the
general context of the rise of Islamism. In Karaduman, a student could not
receive her degree because of her photo, in which she appeared veiled. The
Commission noted that the university enforced secular rules to ensure har-
mony among students, during times of rising extremism.65 In Leyla Şahin, a
university student was not allowed to take her exams because she wished to
wear her hijab, in violation of the law. The ban against the hijab relied on the
Refah Partisi case, which does not address the veil but Islamism, and was justi-
fied by the attempt of the state to curb the influence of extremism. The judges
stated in the Refah Partisi that “the Court does not lose sight of the fact that
there are extremist political movements in Turkey which seek to impose on
society as a whole their religious symbols and conception of a society founded
on religious precepts.”66 This argument is mentioned also in the sas case, in
relation to the legislative history of the French law of 2010 banning full-face
veiling. The Belgian cases brought in 2017 also fall back on the security argu-
ment. Thus, the veil has consistently been associated with extremism. In so do-
ing, the Court endorsed a single narrative according to which the veil is a risk
to democracy, and never sought to look into the counter-narrative, that the veil
can contribute to democracy, indirectly endorsing the philosophy supported
by the French and Belgian veil bans that the veil is a threat to the social fab-
ric and to democracy. As summed up by Judge Tulkens, “the headscarf cannot
be associated with fundamentalism… Not all women who wear the headscarf
are fundamentalists and there is nothing to suggest that the applicant held
fundamentalist views.”67 By side-lining the women who petitioned the ECtHR
to adjudicate their claim that wearing the veil is part of their human rights,
the Court missed several opportunities to consider the benefits of multicul-
turalism or with interculturalism by examining a religious perspective. It did
conduct religious analysis, however, and sided with conservative views. The
question that arises is one of choosing internal narratives: Why did the Court
endorse conservative interpretations concerning the veil?
64 Şahin v. Turkey, § 111.

65 Karaduman v. Turkey, 108.
66 Refah Partisi and Others v. Turkey 41340/98;41342/98;41343/98 and 41344/98 [2001] echr
495 (31 July 2001) § 123.
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In all these cases, the Court used the margin of appreciation as the yardstick
to measure the freedom of religion of an individual against the interests of the
state. Yet, the balancing exercise between the rights of the individual and state
interest did not take into account the cultural and religious beliefs of individu-
als and the veil as reflecting an identity. The argument put forward by Judge
Spano and endorsed by Judge Karakas was that the majority of a society sets
the tone, which explains why the court applied the principle at the expense of
a minority.68 I suggest that the balancing effort of the Court should not rely on
a negative depiction of Islam. The social reality of the veil as an instrument, as
argued by Islamic feminists, has not been taken into consideration. I believe
that Judge Spano’s argument about the majority vs. the minority view should
be changed: the discussion should not be framed from the perspective of a
majority holding democratic values vs. a minority associated with a security
threat. Rather, the Court should endeavour to encourage a cross-cultural ex-
change. The Court should consider social, cultural, and religious beliefs as rel-
evant because its role is to champion the rights of the minority. In present-day
Europe, which is de facto multicultural, I believe it is the role of the ECtHR to
place religion in context and therefore to look beyond protection alone under
Article 9 echr, at the risk of becoming the Court of some Europeans as op-
posed to others. To avoid doing so, the Court must embrace the subjectivity of
the appellants; I am not calling for a sacrifice on the part of the collective, of
living together, but for a consideration that the subjective experience of Euro-
pean Muslim women has a role to play.
It remains to be seen whether the argument of the veil as an emancipation
tool will be considered in future ruling, and whether the Court will elaborate
on the “well established feminist position”69 referred to in sas, which rein-
forces my case for the experiment: What if the ECtHR were to consider this al-
ternative religious narrative according to which the veil could empower some
women? And what if the Court were to step away from conservative views on
the veil, to look into other readings? The Court certainly did not choose to de-
velop its consideration of subjective views in the Belgian cases in 2017.
3.2 Consequences of the Rhetoric of the Court: the Exclusion of Women

The Karaduman, Dahlab, and Şahin cases, among others, dealt with religious
paradigms against a secular backdrop and called into question the accommo-
dation of religious and cultural diversity. By opting for a stereotyped reading
68 Belcacemi and Oussar v. Belgium, Opinion Concordante Du Juge Spano, à laquelle se rallie
la Juge Karakas, §7.
69 Ibid., § 77.
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228 Van Engeland
of the veil, rather than addressing the issue of religious pluralism in a secular
society, the Court effectively excluded veiled Muslim women from the public
sphere. Although the sas v. France case represented a shift in perspective, as
it indirectly considered alternative views of the veil, the ECtHR still regarded
the veil as an obstacle to socialization and to living together. The outcome of
the sas case was therefore, yet again, exclusion: whereas before women were
excluded on the ground of public safety and lack of gender equality, this time
they were perceived as either unable to blend into society or as threatening
the social fabric.70 The veil was seen as an obstacle to social life rather than
examined as the opposite, an instrument for socialization. This is the opposite
of the passport veil argument.
Yegenoglu characterized the reasoning of the Court as representative of co-
lonial fantasies: the veil is seen as a tool for controlling women’s bodies, and
women are seen as powerless victims of patriarchy.71 It ignores the empowering
readings of Islam, offered by Islamic feminists, and does not consider internal
religious perspectives that seek equality. Yegenoglu also explained that the cas-
es establish a hierarchy, in which the West stands for gender equality, whereas
religion and culture are factors that keep civilization behind.72 Mahmood criti-
cised the claim that secularism is by nature emancipatory whereas religion is
“totalizing.”73 Razack went further, speaking of a policy of expulsion of Muslim
women from European public spheres by means of three stereotypical figures:
the imperilled Muslim women, the dangerous ones, and the civilized ones.74 In
the ECtHR cases, the women who sought adjudication were associated with a
dangerous category of Muslim women, whose veiling threatens public order or
who are associated with the rise of extremism. When women are considered to
be victims, the Court associates them with the imperilled women, subjected to
Islam and patriarchy, lacking volition This turns women into what Malik called
the “other” citizen.75 The outcome of the ECtHR case law is the “othering” of
veiled Muslim women, which has led to their exclusion from the social sphere.

71 Meyda Yegenoglu, Colonial fantasies: Towards a feminist reading of Orientalism (1998), 3–7.
72 Ibid.
73 Saba Mahmood, “Is Critique secular?”, 20(3) Public Culture (2008), 447–452, 449.
74 Sherene Razack, Casting Out: The Eviction of Muslims from Western Law and Politics (2008),
146.
75 Maleiha Malik, “The ‘other’ citizen: religion in a multicultural Europe”, in Lorenzo Zucca
and Camil Ungureanu (eds.), Law, State and Religion in the New Europe: Debates and
Dilemmas (2012), 93–114.
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This exclusion from European society is the reason why it is urgent to press
the Court to think differently and to try the proposed experiment, which could
lead them to explore other readings of the role of the veil.
The outcome of the approach followed by the ECtHR is that a stereotyped
version of Islam, stemming from a secular institution, replaces a conservative
one, originating from the community. Both constitute an attempt to control
women’s bodies, with the narrative of the Court relying on the argument of
emancipation. The outcome is a European paternalism, in addition to Muslim
paternalism, as women are told both “veil” and “do not veil.” In these circum-
stances, freedom of choice becomes crucial. It is a real issue for Muslim wom-
en to choose whether or not to veil; whether or not to marry; whether or not to
work. All the rights established in international and regional documents have
no value or function if the beneficiaries of those rights are not empowered
to use them. Islamic feminists struggle to empower women to make choices
and decide whether or not they want to use women’s rights, and within which
framework they wish to do it. The ECtHR should strive to protect these women
who seek empowerment by considering the arguments put forward regarding
the passport veil. It should also encourage alternative views as well as an ex-
change of views, so that cultures can grow together in the European space.
Instead, the Court has created its own narrative, using “gendered and idealized
images of women as symbols of group identity.”76 It is clear that the purpose
of the judges was to empower Muslim women, but the effect, as argued in this
paper, is to violate the rights of these women using the very policies aimed
at protecting them.77 Furthermore, as Radacic stressed, “in dismissing the
perspective of a woman in question, the Court pitted the principle of gender
equality against the principle of personal autonomy.”78 The consequence of
putting personal autonomy face-to-face with gender equality is the sacrifice of
the empowerment of the individual to society. As stated by Evans:
The women in these cases cease to be individuals with their own per-
sonalities, histories and concerns. Instead they become a symbol of the
tension between the imagined West (secular, rational, egalitarian, human
76 Ayelet Shachar, “Religion, State, and the Problem of Gender: New Modes of Citizenship
and Governance in Diverse Societies”, 50 McGill L J (2005), 50.
77 Shachar, supra note 71, at 3.
78 Ivana Radacic, “Gender equality jurisprudence of the European Court of Human Rights”,
19(4) ejil (2008), 841–857.
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230 Van Engeland
rights respecting) and imagined Islam (religious fundamentalist, irratio-

nal, discriminatory and violative of human rights).79
Yet, the message of the Court is clear: the only possibility for empowerment
à l’européenne is to shed the veil. This process of exclusion of elements that
do not match European values is described by Soirila: veiled Muslim women
are treated as a “biopolitical risk” that needs to be “normalized” to “disappear
into the mass of the mainstream population, or be excluded from the society.”
According to Soirila, the ECtHR cannot avoid biopolitical aims, and fulfils
them “through discourses that the judges partake of and in cases where the
margin of discretion of the Strasbourg judges or the national authorities is
increased.80” It seems indeed that some Muslim women have become politi-
cal pawns in a chess game, and are being compelled to choose between their
multiple identities. The division into Muslim women between good ones, who
have integrated into society by not wearing a veil, and the dangerous ones, who
represent a risk, or the imperilled ones, who are oppressed, should be evaluat-
ed against the critical framework suggested by Mahmood, who denounces the
idea that there is a conflict between secular necessity and religious threat.81
I argue that by considering these women to be a danger to secularism, the
ECtHR adopts a laicist understanding of secularism, in which religion becomes
the opponent of the state and society. The Court adheres to the dichotomy that
one is either against secular values, or in their favor. If “we” do not defend secu-
lar values and lifestyles, it is argued, “they,” often Islamic extremists, will take
over our liberal freedoms and institutions.82 Religion in the public sphere be-
comes a potential danger, and it is necessary to relegate it to the private sphere.
As a result, secularism becomes a way of controlling religion, which is obvi-
ous when the Court displays fear of indoctrination in Dahlab and in Ciftci.83
The attempt to control religion assumed a new form first in the sas case, and
now in the Belcacemi and Oussar and Dakir cases, the threat having evolved
from raw Islamic extremism to the subtle undermining of society by veiled
women. In such circumstances, the veil cannot be allowed to operate as a pass-
port and can serve only as a religious id card for living in the private sphere.
79 Carolyn Evans, “The ‘Islamic Scarf’ in the European Court of Human Rights”, 7(1) Melb. J.
Int’l L. (2006), 52, 67, 71.
80 Ukri Soirila, “The European Court of Human Rights, Islam and Foucauldian Biopower”, 2
hlr (2011), 365–400, 365.
81 Mahmood, supra note 124, 449.
82 Ibid.
83 Evrim Ciftçi v. Turkey 59640/00 [2005] echr 768 (29 November 2005).
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A visa would be granted only if the woman agreed to unveil. This privatization
of religion operated by the Court is clearly an issue for veiled Muslim women
who use a religious or cultural symbol to leave the private sphere and enter the
public sphere. Their passport is not considered valid by the Court. This is why
I encourage the Court to experiment by looking into other readings of the veil,
including internal narratives, so that the judges can contribute to developing
a model of secularism that relies on a Rawlsian overlapping consensus.84 In
this model of secular state, a veiled woman would be treated equally with all
other citizens and would contribute to what she thinks the general good is.
The state would adopt a neutral stance toward Muslim women’s beliefs, and
in return, they would contribute to society by becoming empowered and play-
ing a public role. This framework may entitle veiled Muslim women to move
within a rather neutral space in which Islam would play a role. According to
advocates of multiculturalism, this would also have a positive effect on cohe-
sion of society. There would be a flow of cultural exchange that would cause
society to grow, validating interculturalism as the way forward. This solution
can have far-reaching consequences for the way in which secularism is per-
ceived in countries like France, and at the same time point the way to making
multiculturalism and interculturalism a reality.
The result of grasping the veil as a political issue rather than perceiving
it through the lens of women’s stories and subjective views is that the Court
approaches veiled Muslim women as objects rather than beings in control of
their own lives. The judges’ attitude is a negation not only of feminism but also
of Islam, an attitude that has been perceived as racist or colonial.85 It is clear
that the Court is not expected to follow any agenda or engage in judicial activ-
ism that would be detrimental to its mission. But considering Islamic femi-
nisms would provide alternative routes to empowerment and gender equality.
4 sas v France and Prospects beyond 2017: Living Together as a

New Yardstick
Next, I recommend changing the stance of the Court by pushing my experimen-

tation further, investigating what turn the experiment might take if the ECtHR
either adopted a theological approach or focused on personal narratives.
84 Jocelyn Maclure and Charles Taylor, Secularism and Freedom of Conscience (2011), 11–12.
85 Ibid., 67.
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232 Van Engeland
4.1 The “Living Together” Argument: Us vs. Them

I analyze the ECtHR as a forum for the suggested experiment because it has a
framework for thinking about freedom of religion and uses instruments, such
as proportionality and the margin of appreciation; it provides a strong basis
for the legal reasoning that rejects wearing the veil in a public place. The Court
has built an understanding of the role of religion in public life and of the in-
teractions between religious minorities and the state. Yet, this conception is
exclusive rather than inclusive, as it grants a wide margin of appreciation to
the States when it comes to making decisions about whether or not interfer-
ence with freedom of religion is needed.
By referring to living together in the sas case, the Court sidelined religion.
The ECtHR respected the approaches to law of nation states. The Court em-
braced the French and the Belgian “living together” argument to protect the
majority of the citizens. The outcome has been dire, leading to the exclusion
of the minority. The argument of those who live together according to some
values leads to rejecting those who do not, defeating the very purpose of mul-
ticulturalism. Therefore, trying to advance an intercultural agenda through the
Court seems like endeavour doomed to failure. The outcome of the sas case
needs to be questioned if they do not take into account the views of minorities
living within their borders. The argument that only someone who shows her
full face (sas addressed full-face banning) can be part of the French society,
effectively creates an “us vs. them” society, in which women wearing a full-
face veil, willingly or not, are sidelined by the state. Such extreme situations, in
which veiled women become invisible to society must be avoided as much as
situations in which women are considered a hazard to society and are prevent-
ed from wearing burkini on the beach as seen in France in the summer of 2016.
Empirical findings, such as those presented by Silvestri86 and Brems,87 are
crucial for understanding the reason why the veil is perceived as emancipatory
by some women. It is also necessary to develop a theoretical framework based
on socio-legal studies to assess the importance of the actions of the Court with
regard to veiling and unveiling. My focus of the ECtHR is explained by the fact
that the Court plays a crucial role in changing the judicial landscape of Europe.
The Court is in a position to influence the behaviour of its member states with
regard to multiculturalism, interculturalism, and cultural diversity, often refer-
ring to a broad margin of appreciation in the matter. This is why the ECtHR
needs to be encouraged to realize what the consequences of its decisions are
for the European Muslim minority. Judges should be encouraged to examine
86 Silvestri, supra note 78.

87 Eva Brems, The Experiences of Face Veil Wearers in Europe and the Law (2014).
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the issue of religion and secular affairs differently, by analyzing the narratives
of veiled European Muslim women, to reflect their needs and protect them
better. The dynamics of rights vs societal change is thus at the core of the issue
at hand. The ECtHR is expected not only to voice an opinion on the limits of
freedom of religion under Article 9; it is also expected to weigh in on the role
of religion in society and to understand that part of its mission is to medi-
ate between law and social practices to reinforce social cohesion. The Court,
therefore, plays an important role in bringing all identities and legal subjectivi-
ties together under the umbrella of the law. This is why I call for the Court to
develop an all-inclusive framework and instruments to deal with religion and
symbols of religion in public life, beyond the margin of appreciation.
The question of bias and of preferential treatment may be raised if the Court
were to consider subjective narratives of a minority. Such an argument, how-
ever, would not take into consideration the stakes of the passport veil that exist
for the Muslim minority, such as women’s empowerment. Indeed, the issue
goes beyond the passport veil; it is also about how the ECtHR approaches the
role of religion, pluralism, multiculturalism, and interculturalism in Europe.
The ECtHR should endeavour to examine the issues that are deeply embed-
ded in society, such as social characteristics, by listening to those who struggle
to contribute to living together, so that their inclusion may be improved. The
German Constitutional Court has followed this path in a decision88 in which
it took into account the discrimination that women encountered when veiled.
Judges considered the fact that women were forced to deny their religion to
obtain employment and good living conditions. Such inclusion of alternative
views about women did not constitute a preferential treatment but a way of
accommodating the other to reinforce social cohesion. Consequently, my ex-
periment raises the question of the role of courts when it comes to addressing
multiculturalism and to “re-orient legal thinking to allow adequate recognition
of (these) conditions.”89
4.2 Social Cohesion and Living Together

The sas case, followed by the 2017 cases, curbed freedom of religion on the
basis of protection of living together. The rationale for these decisions was that
the full and partial face veil undermined the social cohesion of France, and the
country could rely on its wide margin of appreciation to interfere with free-
dom of religion:
88 Ludin v. Land Baden-Wurttemberg (“Lehrerin mit Kopftuch”), 2 BvR 1436/02, 24 September

2003.
89 Roger Cotterrell, “Culture, Power and the Human Animal: A Reply”, 4 Int J. L. C. (2008), 407.
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234 Van Engeland
The Court takes into account the respondent State’s point that the face
plays an important role in social interaction. It can understand the view
that individuals who are present in places open to all may not wish to see
practices or attitudes developing there which would fundamentally call
into question the possibility of open interpersonal relationships, which,
by virtue of an established consensus, forms an indispensable element of
community life within the society in question. The Court is therefore able
to accept that the barrier raised against others by a veil concealing the
face is perceived by the respondent State as breaching the right of others
to live in a space of socialisation which makes living together easier.90
Although the concept of living together is a “very general concept,” as well as

“far-fetched and vague,”91 it still has a deep meaning and emphasizes the idea
of “us versus them.” In this rhetoric, the other, the veiled Muslim woman, is
showing her inability or refusal to integrate in society and should therefore
be side-lined for fear of affecting national cohesion. She is thus reduced to be-
ing a veiled woman rather than being a woman wearing the veil. In contrast,
the argument of the passport veil rejects the idea that women refuse integra-
tion. It relies on research analyzing why women veil wear the veil to integrate
society.92
Cotterrell’s perspective that justice acts as a lubricant for the mechanisms of
society to “ensure smooth, complex interplay of social and economic roles and
functions93” is challenged in these circumstances. According to Cotterrell, the
role of the law is to remove barriers and actively motivate individuals to play
their part into society. I believe this is also true of the courts. Courts play an im-
portant role through their contribution to democracy and human rights, both
of which are elements framing the mission of the ECtHR. By citing the need
to keep social cohesion intact, to ensure that all live together, the Court plays
its role as a lubricant. This is accomplished, however, at the expense of social,
cultural, or religious values, integrating or excluding these values according to
the benchmark of the margin of appreciation.
The Court adopted the French idea that social cohesion is defined as our
ability to rally around common values, rejecting the other as unfit. As summed
90 sas v. France, § 122.

91 Dissenting Opinion, sas v. France, §5.
92 Open Society Foundation. 2011. “Unveiling the truth: why 32 Muslim women, wear the
fullface veil in France”. Open Society Foundation. Retrieved 17 February 2017, http://www
.opensocietyfoundations.org/sites/default/files/a-unveiling-the-truth-20100510_0.pdf
93 Roger Cotterrell, “Justice, dignity, torture, headscarves: can Durkeim sociology clarify
legal values?”, 20 Soc. & Leg. Stud. (2011), 3–20, 7.
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up by a French politician, “social cohesion presupposes acceptance that oth-

ers can look at you.”94 This acceptance seems to be denied to citizens when
others are veiled, causing a sense of unease, as demonstrated by the facts of
the Dahlab case and by the security argument put forward in the Belcacemi
and Oussar case. It then becomes the mission of the Court to ensure that there
is no social conflict in upholding social cohesion. Yet, that consideration of
the principle of “living together” would lead to the marginalization of some
citizens, denying them the opportunity for upward mobility. The current case
law demands a reevaluation of the social contract to reflect on how we con-
sider European veiled Muslim women and of the role they can play in society
and the contribution they can make to it. None should be excluded, and the
Court should be reminded that “the collective thrives by allowing individuals
to thrive.”95 Furthermore, marginalization can have uncontrolled effects, such
as driving religious, cultural, and traditional practices underground, threaten-
ing women’s rights.
The Court is in a position to renegotiate the social contract and make it
more inclusive. In this regard, Binmore’s model,96 distinguishing between so-
cial norms and social preferences is relevant to the passport veil. In the cur-
rent state of affairs, the ECtHR considers undefined social norms as paramount
(for example, public safety) as the expense of social preferences. According to
Binmore, however, social preferences should be respected to encourage social
bonding and collective life. Rather than excluding and losing individual ele-
ments, everything must be done to include them to ensure social cohesion.
The idea is to maximize the freedom of the individual to choose within a
framework, knowing that preferences are limited by preferences of others. As
explained by Gintis, however, “social norms are an emergent property of hu-
man sociality, and exist as macrosocial structures that are not reducible to the
preferences of individuals.”97 Binmore noted that it is indeed difficult to “for-
mulate a coherent theory of social preferences unless one has a systemic mod-
el of social norms existing outside of the system of individual preferences.”98
The ECtHR is asked to mediate social preferences and social norms, without
94 Bill prohibiting concealment of the face – Speech by Michèle Alliot, Ministre d’Etat,
Keeper of the Seals, Minister of Justice and Freedom, at the Senate (excerpts), Paris,
September 14 , 2010, http://www.ambafrance-us.org/spip.php?article1853.
95 Ibid.
96 Ken Binmore, Natural Justice (2005).
97 Herbert Gintis, “Reply to Binmore: Social Norms or Social Preferences?” 2011. Retrived
17 February 2017, http://www.umass.edu/preferen/gintis/ReplyToBinmore.pdf.
98 Ibid.
0004285752.INDD 235 204331 3/4/2019 12:58:19 PM

236 Van Engeland
leaning toward an untenable individualism.99 In that regard, the rationale of

the un Committee when addressing the refusal by India to renew a residence
permit without a bareheaded photograph is of interest. It questioned the ar-
guments made by India that an id photograph of a Sikh with a turban was a
security issue. The committee proposed a shift of burden from the individual
to the state, arguing that unless the state was able to determine the security
threat, freedom of religion has to be respected. Social preferences are there-
fore tolerated as long as the state cannot prove that they are harmful to social
cohesion.100,101
Social preferences should therefore not be a factor in the exclusion of
European Muslim women wearing a veil from membership in society. This
represents a challenge for the Court, which must ensure a strong attachment
to society at the micro and macro levels. I believe the veil constitutes an excel-
lent passport for this membership, if the veil is approached as an indicator or
“membership attitude”102 rather than what severs or weakens the link to soci-
ety. I believe that tolerance of social preferences such as the passport veil will
empower women experiencing a cognitive dissonance to fully belong to the
European public sphere; it is best than a model of social cohesion according to
which individuals are expected to show loyalty by unveiling.
4.3 The Approach of the Court to the Veil: a Theological Argument or a

Subjective Narrative?
Judges appear not to be engaging with religion outside Article 9. Religion re-
mains largely unintelligible to the Court and the States, to the extent that “eras-
ing its public evidence seems to have become the most unanimously adopted
posture.”103 This is why having experts provide knowledge about the different
views on the veil would be useful. For this experiment to take place, the fol-
lowing question of method must be answered: How is the Court expected to
proceed when considering accommodating alternative religious perspectives?
Should the Court focus on a theological argument, assessing the multiple un-
derstandings of the veil, as I suggested above? Or should it, instead, rethink the
99 Herbert Gintis, The Bounds of Reason: Game Theory and the Unification of the Behavioral
Sciences (2009).
100 Ranjit Singh v. France, Communication No. 1876/2009, U.N. Doc. ccpr/C/102/D/1876/2009
(2011), § 8.4.
101 Peter M. Gerhart, Tort Law and Social Morality (2013), 16.
102 Noah E. Friedkin, “Social Cohesion”, 30 Annu. Rev. Sociol (2004), 409.
103 Valerie Amiraux, “The ‘illegal covering’ saga: what’s next? Sociological perspectives” 19(6)
si (2013), 794–806, 798.
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balance between state and society on one hand, and individuals on the other.
This is an important question because it addresses the role of the judge: Should
judges consider religious, cultural, or traditional matters, or should they look
into personal motivations?
The Court has conducted theological assessments in the past.104 This is why
I argue for such an assessment: it addressed the veil as a religious instrument
for purposes of proselytizing and coercion. The Suku Phull case on the tur-
ban105 illustrates this tendency: in that case, the judges looked at the turban
as a religious obligation. The ruling is mitigated by the Mann Singh case, in
which the Court looked into individuals’ beliefs rather than into theology, stat-
ing that:
[a]ccording to the applicant, the Sikh faith compels its members to wear
a turban in all circumstances. It is not only considered at the heart of
their religion, but also at the heart of their identity. Consequently, the
Court notes that it consists of an act motivated or inspired by a religion
or a conviction.106
Later, however, the Court returned to making theological assessment as to

whether or not the turban was compulsory.107 Two options are available in my
experiment: the ECtHR could either go back to the Mann Singh case, which
focuses on a subjective individual narrative, or retain its theological approach
and consider other readings of a religious instrument. I have proposed a theo-
logical argument in this article, based on the preferences of the Court, but an
argument in favour of considering subjective narratives exists, and has has
also appeared in this article, indirectly.. Subjectivity was considered in Raihon
Hudoyberganova v. Uzbekistan, which involved coercion (a student was expulsed
from university for refusing to remove her veil),108 as Ms. Hudoyberganova’s sta-
tus as a victim was acknowledged.
For the sake of our experiment, note that another forum, the un Human
Rights Committee, approached the issue of the turban differently, q uestioning
104 See the analysis by Saila Ouald Chaib, “Suku Phull v. France rewritten from a procedural
justice perspective: Taking religious minorities seriously”, in Eva Brems (ed.), Diversity and
European human rights: Rewriting judgments of the echr (2013), 218–242, 229.
105 Suku Phull v. France, 35753/03 [2005] echr (11 January 2005).
106 Mann Singh v. France, 24479/07 [2008] echr (27 November 2008).
107 Jasvir Singh v. France, 25463/08 [2009] echr (30 June 2009) and Ranjit Singh v France
27561/08 [2009] echr (30 June 2009).
108 Raihon Hudoyberganova v. Uzbekistan, Communication No. 931/2000, Views of 5 Novem-
ber 2004.
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238 Van Engeland
whether the wearing of a turban would affect safety by preventing proper iden-
tification. In its reasoning, the Committee focused on the right of the individu-
al, which it stated that needed to be protected.109 The Committee balanced the
collective and individual rights differently from the ECtHR, to prevent unnec-
essary curbing of freedom of religion, and considered that the state rationale
of public safety was not demonstrated in this case:
[E]ven if the obligation to remove the turban for the identity photograph
might be described as a one-time requirement, it would potentially inter-
fere with the author’s freedom of religion on a continuing basis because
he would always appear without his religious head covering in the iden-
tity photograph and could therefore be compelled to remove his turban
during identity checks.110
Therefore, the Committee examined the indirect consequences of an id photo

without turban for an individual whose identity was associated with his reli-
gious beliefs. The position of the Committee demonstrates that it is possible
to have a better understanding of the applicant’s religious, cultural, and tradi-
tional views, than that demonstrated by the ECtHR as long as such elements do
not undermine public safety and as long as the state if able to define, explain,
and justify such a threat. The Committee did not seek to debate any religious,
cultural, or traditional beliefs that would be problematic, but rather to find a
better-suited yardstick. The yardstick remains the necessary limitation of in-
dividual freedom of religion to protect state interests, if the state is able to
demonstrate a risk. The position of the Committee illustrates that it is possible
and necessary to ask real questions rather than use broad concepts such as
public safety and living together at face value. This approach of the Commit-
tee shows that the wide margin of appreciation of the ECtHR must be recon-
sidered and the balancing that leads to the “sacrifice”111 of individual rights
questioned. In January 2015, the German Constitutional Court concluded that
although it was possible to curb individual human rights to protect the inter-
ests of the state, such limitation would have to be based on concrete facts rath-
er than prejudiced views.112 There should be sufficient concrete evidence that
109 Ranjit Singh v. France, supra note 159.

110 Ibid.
111 Bikramjit Singh v. France, Communication No. 1852/2008, u.n. Doc. ccpr/C/106/D/1852/
2008 (2013), § 8.7.
112 Case unnamed, 1 B v R 471/10 and 1 B v R 1181/10, 27 January 2015.
0004285752.INDD 238 204331 3/4/2019 12:58:19 PM

earing the veil by a teacher would undermine the peaceful atmosphere in

w
the school. Domestic courts have therefore taken the lead in this matter, using
a contextualized approach to the veil, taking Islamophobia into consideration,
and showing respect for women’s religious identity. Nevertheless, the difficulty
of practicing cultural diversity in the courts remains a reality, as stressed by
Shachar.113 Yet, the ECtHR could practice cultural diversity by providing “an
adequate balance between respecting cultural difference and protecting indi-
vidual rights.”114
The reason for arguing in favor of the consideration of an “individual exog-
enous factor(s)”115 or for a theological argument is that it may help reinforce
national cohesion. In the case of the passport veil, considered either as a sub-
jective individual statement, or from a theological point of view, I argue that it
is necessary for the Court to be aware of the existence of an alternative under-
standing of the role of the veil. Such understanding would give a whole new
meaning to living together and to the content of social cohesion.
5 Conclusion
By integrating Islamic feminism in its considerations on veiling into a secu-

lar context, the Court could enrich its vision and provide better protection of
freedom of religion. This demands a more coherent approach to the margin of
appreciation, using such elements as the passport veil. This also means that
the Court needs to start regarding Muslim women wearing a veil as empow-
ered subjects, rather than seeing them as victims and objects. The Eremia case
may contribute to this shift, as it focuses on the effect that law has on women,
regarding them as subjects,116 as does the Hudoyberganova case, which con-
sidered the effect of being ousted for a student.117 In the Eremia case, the ap-
plicant was the victim of domestic violence, who argued that the state had
failed to protect her, in breach of the law. The ECtHR supported that argument
and investigated the effect that legislation and its breach have on vulnerable
113 Shachar, supra note 5.

114 Shachar, supra note 71, 88.
115 Hector Fix-Fierro, Courts, Justice, and Efficiency: A Socio-legal Study of Economic Rational-
ity in Adjudication (2004), 55.
116 Eremia and Others v. the Republic of Moldova (28 May 2013).
117 Raihon Hudoyberganova v. Uzbekistan, § 50.
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240 Van Engeland
individuals.118 The argument followed by the Court was that domestic violence
affects women disproportionately and differently, which should be c onsidered
in the decision.119 The ECtHR appears to have shifted its substantive approach
to equality under Article 14 and its approach to formal equality to a focus
on harm and indirect discrimination. The Eremia case investigated the way
in which discrimination is experienced from the perspective of the victim,
examining the effects of a law to evaluate whether it causes or perpetuates
disadvantage, discrimination, exclusion, or oppression. The shift of focus is a
crucial change of perception, which could affect Muslim women positively,
possibly addressing their cognitive dissonance, now that the focus is on how
discrimination is experienced. In Europe, Muslim women experience mul-
tiple identities, and at times struggle to reconcile their religious beliefs with
societal beliefs. This can create a cognitive dissonance: veiled Muslim women
struggle to reconcile their belief in wearing the veil with their contribution to
society.120 This dissonance can be exacerbated by decisions such as the ones
in domestic or regional courts that describe the veil as a threat to the secular
order or an instrument of women’s oppression. Thanks to the Eremia case, the
Court can now change the focus on the veil from that of a tool of propagation
of extremism and oppression to examining the disadvantage, discrimination,
exclusion, and oppression experienced by veiled women.121
The integration of veiled Muslim women in society is of great importance
for human rights as well as for the evaluation of the role of culture, religion,
and traditions in Europe. I do not suggest that all beliefs and values should
be accommodated, but that the ECtHR must refine its test to ensure at least
proper consideration before discarding them, if necessary, in a clear and con-
structive manner. The way in which the Court addresses the issue of the veil
can have a beneficial effect on multiculturalism, and perhaps on intercultur-
alism. The hope is that the experiment suggested in this article provides an
118 Eremia case, supra note 170, § 50 and § 60.

119 Ibid., § 60.
120 Yvonne Yazbeck-Haddad, Muslims in the West: from Sojourners to Citizens (2002), 115.
121 This shift is completed by another important change in the Court’s reading of Article 14:
in the B.S. v. Spain case (B.S. v. Spain 47159/08 [2012] echr (24 October 2012), the Court
adopted an intersectional approach which is an important contribution to the consid-
eration of feminist theories (Keina Yoshida, “Towards intersectionality in the European
Court of Human Rights: the case of B.S. v Spain” 21(2) Fem. Legal Stud. (2013), 195). Inte-
grating intersectionality completes the changes brought to perceptions of discrimination
and its effect on the outcomes on Muslim women.
0004285752.INDD 240 204331 3/4/2019 12:58:20 PM

illustration of both multiculturalism and interculturalism. I built on Cantle’s

view who wishes to see culture and religion in constant evolution, which led
me to the idea of a passport that enables crossing borders. I also challenged
the idea of tolerance of Islamic feminism, as “tolerance always presupposes
a control over what is tolerated.”122 My suggestion was rather for the ECtHR
judges to embrace diversity by supporting the creation of European Muslim
women’s identities.
122 Ghassan Hage, White Nation: Fantasies of White Supremacy in a Multicultural Society
(2000), 89.
0004285752.INDD 241 204331 3/4/2019 12:58:20 PM

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journal of law, religion and state

Sovereignty and the Constitution

Yaqoob Khan Bangash

Pakistan – Grundnorm – constituent assembly – sovereignty – Islamic

© koninklijke brill nv, leiden, 2019 | doi 10.1163/22124810-00702001

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journal of law, religion and state 7 (2019) 129-151

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The present article focuses on a seminal moment in the constitutional his-

journal of law, religion and state 7 (2019) 129-151

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2 Why the Objectives Resolution?

journal of law, religion and state 7 (2019) 129-151

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s­ uccession of Mohammad.12 The or, however, while being inspired by both

The position of women is already equal in law to that of men. It may be

journal of law, religion and state 7 (2019) 129-151

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journal of law, religion and state 7 (2019) 129-151

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I shall watch with keenness the work of your Research Organization in

journal of law, religion and state 7 (2019) 129-151

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3 Sovereignty and the Objectives Resolution

journal of law, religion and state 7 (2019) 129-151

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that it is to be exercised within “limits prescribed by Him.” This one-­sentence

journal of law, religion and state 7 (2019) 129-151

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28 cap Debates, Vol. v, No. 2, March 8, 1949, 14–15.

journal of law, religion and state 7 (2019) 129-151

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of the constitution—the very basic factor to be considered—does the actual

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and non-Muslims by definition do not “believe” in those principles (otherwise

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obviates the possibility of any individual arrogating to himself power or au-

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A Constituent Assembly is a very special legislature. Rather than creating laws

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Although the official discourse repeatedly repudiated the involvement of the

Chattopadhyaya then quoted from a publication of the Jamaat-e-Islami party

61 cap Debates, Vol. v, No.5, March 12, 1949, 90.

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One of the most glaring defects of modern democratic methods is that

64 Jahanara Shahnawaz, Father and Daughter (Lahore: Nigarishat, 1971), 247.

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The preamble mentions two sovereign authorities. On the one hand

66 Civil and Military Gazette, March 22, 1949.

s uccession of Mohammad.12 The or, however, while being inspired by both

that it is to be exercised within “limits prescribed by Him.” This one-sentence