Constitutional identity and patriarchy: the exclusion of women from the priesthood as a constitutional problem

Abstract This article brings to the debate on constitutional identity a category borrowed by feminist thought: patriarchy. Generally considered as a pre-existing identity, flushed out by a modern/progressive constitutional identity, this paper claims that patriarchy can be indirectly perpetuated by certain constitutional provisions if not differently interpreted. By focusing on the issue of the exclusion of women from the priesthood in some majoritarian religions spread in Europe, the paper observes that an effective impossibility of challenging this exclusion in front of a judge, due to the operation of the constitutional principle of religious freedom, creates a growing conflict with another constitutional principle: that of gender equality. The paper notes that this inner conflict between two core constitutional principles, both crucial to the Western constitutional identity, is overlooked by constitutional research and invites constitutionalists to self-reflect on the historical limits of the constitutions that were created by men, in states that often coalesced with religious institutions to assert patriarchy. The paper claims that the constitutional indifference toward the religious gap is no longer constitutionally sustainable in a context in which the EU says that there is no democracy without gender equality. The principle of religious freedom needs to be re-interpreted to readdress a historical injustice suffered by women in the long patriarchal process that excluded them from the sacred. Without imposing upon religion institutions by dictating their faith, the paper suggests some practical measures that can remedy the patriarchal harms suffered by women after they lost access to the altar.