1. Framing patriarchy in the constitutional identity debate

Constitutional identity ‘remains an enigmatic notion in legal theory’,Footnote ¹ theorised from different angles, and sensibilities.Footnote ² I approach it from a feminist perspective, putting it into debate with the concept of patriarchy around a specific case: the exclusion of women from the priesthood in many of the religions spread in Europe like Catholicism, Orthodox Christianity, Islam and Judaism.

Relying on its etymological roots,Footnote ³ for this paper I define constitutional identity as a set of core values, traits and elements through which a group recognises/defines itself and is kept together politically. In the European/Western constitutional identity, two of those core values are freedom of religion, affirmed since the onset of constitutionalism, and equality of the sexes, affirmed one century ago as political equality and later as equality in other fields.

According to Michel Rosenfeld, constitutional identity aspires to transcend all pre-existing identities, and to affirm itself as a superior identity.Footnote ⁴ On this line, one current approach to constitutional identity focuses on the existence of a broader modern political constitutional identity capable of uniting and bringing to synthesis pre-existing identities: subnational, regional, local, tribal, religious and cultural. Constitutional identity is presented as unitive, while the other identities are often perceived as divisive; modern, in the sense that it abandons what are considered traditional, backward values; plural in its contents, and capable of providing an umbrella to guarantee a peaceful political life. Constitutional identity transcends ethnic/cultural/social/economic/religious differences between citizens and unites them under a core of common values.

Nevertheless, it is important to consider that, after a constitutional process is accomplished and a formal constitution is enacted setting the core values of a community, some aspects of previous identities can survive and continue to influence the life of the group. Often constitutional identity negotiates with pre-existing identities and does not suppress them, but rather it allows them spaces of expression within political life. Consider the regional identities that have claimed and obtained a form of recognition within the European Union. This paper brings to this debate on the interaction between constitutional identity and other pre-existing identities a category borrowed by feminist thought: patriarchy.

Literally ‘the law of the father’, patriarchy is a system of social organisation based on the decision-making centrality of a (historically) male figure, identified, depending on context, as the father, husband, brother, elder, political leader or God. This male figure is hierarchically superior to some other men (eg, younger men like sons or men that do not conform to certain male models, such as homosexuals) and women. Patriarchy can therefore be understood both as the ‘hierarchy of a historically male pre-eminent figure’ in the family, in society, in political life, in religion, and as the ‘systemic subordination of women’, the latter aspect being an element that always accompanies the aforementioned hierarchy.Footnote ⁵

Originating circa 3000 BC with the formation of the first ancient kingdoms in Mesopotamia,Footnote ⁶ consolidated by the Romans with the figure of the pater familias and of pater patriae,Footnote ⁷ patriarchy was for millennia the structure by which family life, society and politics were organised in Europe. Although patriarchy is no longer considered part of the European and Western constitutional identity, it still operates as a sort of parallel normative system made up of cultural, psychological, social, economic and religious rules that still influence many aspects of the life today.Footnote ⁸ This influence should not be overlooked by constitutional scholars when thinking of the current constitutional identity of Europe and the West in general.

Modern constitutionalism, understood as a movement that led to the adoption of constitutions that limit political power starting from the 18^th century, had numerous liaisons with patriarchy, and often legal rules and patriarchal rules overlapped in history. To name just a few of those liaisons, think of the exclusion of women from citizenship and vote in the first constitutionalism (1776–20th century), and the sexual contract at the base of the political contract.Footnote ⁹ Those liaisons are today considered over. Collective selfhood believes that the emancipatory project imbued in the Constitution, and embraced by international, European and national law, is completed, at least formally. In principle, patriarchy is perceived nowadays to stand outside the constitutions, in the culture and society, and not within.

Nevertheless, the more the principle of equality of the sexes – nowadays often named as gender equality – advances, the more it illuminates some aspects of legal systems that still somehow embody patriarchal aspects. In this paper I want to reflect on one of them, by focusing on what is, in my opinion, an emerging inner conflict between two core values of the Western constitutional identity.

2. Inner conflict in Western constitutional identity

At the beginning of modern constitutionalism (the American Revolution of 1776 and the French Revolution of 1789), the equality of the sexes was not a part of the constitutional identity. American and European women were excluded from political life, and the emerging of the constitutional state was more a ‘brotherarchy’Footnote ¹⁰ (regime of brothers, fraternity) defeating the former patriarchalism of the absolutist king rather than a truly inclusive democracy. Through a long constitutional and political process which started with the suffragist movement asking the right to vote for women, and followed with the reform of abortion, family law, labour law, etc, equality of the sexes has become nowadays one of the core values of contemporary constitutions. The emancipation of women realised in Europe and in the West, through the constitutional principle of equality, has a major role in fostering collective identity of those societies and is used to differentiate them from other constitutional identities (eg, that of the Islamic states where the complementarity of the sexes is preferred to equality).

Freedom of religion, with the principle of autonomy of the religious sphere and institutions which descend from it, constitutes another definitional element of European and Western constitutional identity. Since its onset, Western constitutionalism strongly contributed to the affirmation of the idea that the State should hesitate to interfere with religious matters. While there are differences between European states – with some of them recognising secularism/laicitè (eg, Article 1 French Constitution), others valuing separation of the political sphere from the religious one (eg, Article 7 Italian Constitution) and still others recognising a prevailing religion (eg, Article 3 Greek Constitution) or declaring to honour the Almighty God (eg, Article 44 Irish Constitution) – nonetheless all European States share the same recognition of free exercise of religion, and of religious autonomy. Those philosophical and legal principles – a precipitate of the Enlightenment recognised through the French and American revolutions – are considered a sign of modernity by Western democracies, which again use them as a differentiation mark. For instance, some Islamic states’ constitutional identities are based on the identification of state law with divine law, while the Western democracies strongly reject this, and affirm themselves as different from those Islamic constitutions. Similarly, with what happens with the equality of the sexes principle, the religion’s autonomy element is used to affirm a certain type of constitutional identity: ‘we are this, and not that’.Footnote ¹¹

This paper explores a growing inner conflict between those two pillars of European/Western constitutional identity: the equality of the sexes (or gender equality) on one hand, and the principles of religious freedom on the other.

This inner conflict is nowadays becoming more and more visible due to the increase of the principle of gender equality as definitory of a democratic constitutional identity.

Current democracies go beyond a procedural, minimal conception of democracy and are, conversely, imbued with axiological components that influence the interpretation of all the rules of the legal system. It is interesting to note how, in the most recent definitions of democracy, the presence of equality between men and women has been added to the axiological elements consubstantial with democracy itself. That without equality of the sexes there is no democracy is becoming today a common constitutional trope, used equivalently as a cipher for Western constitutional identity. For instance, the European Union affirmed that without gender equality there is no democracy,Footnote ¹² and one crucial theme in the US motivation for the export of democracy in the Middle East has been the inferior status of women in those countries.

The affirmation of this new democratic paradigm – no democracy without women’s equality – has determined a reinterpretation of constitutional norms with numerous legal changes in different branches of the system.Footnote ¹³ Consider the changes: in the legislation to guarantee equal access to representative offices (eg, positive actions like reserved quotas for women in Parliaments and other elected bodies); in legal language;Footnote ¹⁴ in the introduction of the so-called ‘gender crimes’ (eg, stalking, femicide) which recognise a structural disadvantage that women experience in society; in the limits placed on cultural rights when some cultural practices are harmful to women’s rights;Footnote ¹⁵ and within the debate on the equation of sexist and misogynistic discourses with hate speech, capable of operating as a limit to the constitutional freedom of expression of thought.Footnote ¹⁶

Whereas the law has addressed the presence of patriarchy in many sectors of social life – family, workplaces, politics – religion has remained immune to the de-patriarchalisation process. Religion is a sphere where patriarchy persists almost intact in the West.

3. The constitutional indifference toward the ‘religious gap’.

Whereas the impact given by the consolidation of the principle of equality of the sexes as consubstantial with democracy has affected most sectors of the legal systems, the religious sphere has proved to be less permeable. This can be seen at the international, European and national level.

Documents that have permeated many branches of the legal system, such as the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), approved by the UN General Assembly on 18 December 1979, halt before breaching the religious sphere.

In the international measurement of the so-called gender gap, religion does not appear. The Global Gender Gap Report, introduced by the World Economic Forum in 2006, measures the gap in four areas: politics, work, health and education. At the European level, the Index on Gender Equality published in 2013 by the EIGE-European Institute for Gender Equality, an autonomous agency of the European Union, represents a synthetic indicator of gender equality in the European Union and in individual Member States and takes into account six different sectors: work, money, knowledge, time, power and health. None of those reports/indexes include religion.

Whereas concepts such as wage-gap, time-use gap, ^{Footnote 17} data-gap ^{Footnote 18} have been widely theorised and addressed at the level of policies promoted by the United Nations and states, what I call the ‘religious gap’ is not yet addressed even at level of institutions such the EU, which are otherwise very active in promoting gender equality.

With the expression ‘religious gap’ I mean the set of disadvantages that women suffer within the majority of existing religions in terms of roles, power, visibility, decision-making autonomy and access to the sacred, as a consequence of their gender. The limiting access to the sacred consisting of women’s exclusion from priesthoods is one example of it. In my opinion, this type of gap should be included in the broader gender gap, since this exclusion of women from religious power, far from being a choice purely internal to religions, corresponds to a precise historical design of social marginalisation of women in which the state actively participated and which has continually affirmed the exercise of patriarchy (see below Section 5).

Gender mainstreaming, that is, the idea that gender analysis must be present in all policies and social studies, innervated many political choices and many disciplines,Footnote ¹⁹ but religions continue to remain excluded from ‘gender analysis’ by the law. The reasons for this asymmetry between, on one side, sectors of the legal system entirely redesigned by gender equality and, on the other side, religion which, conversely, remains intact, are inherent to a structural taboo present in constitutional law. Gendering religion, in fact, is complicated in that it questions key principles of Western constitutionalism, which have their roots in the Enlightenment: freedom of religion, the autonomy of religious institutions, and, where they exist, the principle of secularism/laicitè and the principle of separation between state and religions.

Those principles are considered quintessential to European/Western constitutional identity, and it is indubitable that they have had a progressive function in history. However, it is necessary to ask whether, in a context in which many religions have not been able to adapt to the social emancipation of women, these constitutional principles do not end up acquiring a conservative function, revealing themselves as unconscious devices of a persistent patriarchal law that prevents the full emancipation of women.

The indifference of constitutional law appears more striking when considering that, within other disciplines like theology, there have been significant intellectual and activist steps to break the patriarchal identity of the main religions in Europe. Women have fought for and achieved equality in several denominations of Christianity (eg, Anglican Church, several churches of the Protestant faith), Judaism, and they are still fighting,Footnote ²⁰ but without the help of constitutionalism.

4. Why does the exclusion of women from priesthood pose a problem of constitutional identity?

As a case study of the theoretical reflections expressed above, this part of the paper investigates whether the exclusion of women from the priesthood found in some majoritarian religions and as practiced in Western democracies should be a concern of constitutional law; whether it should be recognised as a practice capable of compromising the full personal and social development of women and their rights; or, conversely, whether it is instead a rule of religious law beyond the proper scope of constitutional questions.

At present, the mainstream answer is the latter and the exclusion of women from the priesthood is not seen as a constitutional problem. The constitutional principle of institutional religious autonomy, rooted in the freedom of religion, demands an inexorable halt in law’s advance at the threshold of religious matters, including those concerning female priesthood.

This paper questions this consolidated orientation, asking about the possibility of a different interpretation of the principle of religious autonomy, particularly in light of the above-mentioned conflict with the principle of equality.

In my opinion, the misrecognition of this inner conflict produces concrete consequences against the rights of women in general.

Contemporary women in Europe and in the West have acquired levels of equality unimaginable fifty years ago. In the public sphere, their possibilities have expanded enormously. To the question: ‘What will you do when you grow up?’, an European girl can answer: ‘I will be a judge’, ‘I will be the president of a board of directors’, ‘I will be an astronaut’. However, especially if she was born in Southern Europe, she still cannot say: ‘I’ll be a priestess, a minister of the Church, a rabbi, an imam’.

In Catholicism and many other Christian faiths, in several sectors of Judaism, in Buddhism, in Islam and other religions present in Europe due to immigration, there is still no possibility for a woman to access to the highest level of the clerical hierarchy. Should she challenge her exclusion from the Catholic church, the Greek Orthodox Church or any other of the above-mentioned faiths and petition to join the priesthood, the judge would say that the constitutional principle of religious institutions’ autonomy prevents the court from challenging religious rules.

This exclusion of women from the sacred is, in my opinion, one of the most obscured and, thus far, least denounced of the persistent gender discriminations. Constitutional identity remains patriarchal insofar as it does not address women’s lack of access to the sacred. The commitment of National, European and International law toward women’s rights is incomplete until it adequately addresses the sacerdotal exclusion. To say that this exclusion runs against women’s rights tout court might be objectionable as this statement seems to not safeguard the internal view of the religions and the beliefs (and rights) of women who believe that only men can be priests. While those views should be respected, I want to point out a general impact on women rights that patriarchal religions might have. The problem posed here would be less serious if the religious landscape in Europe would include more religions that guarantee full gender equality. This is less because a devoted Catholic could easily change religions if s/he could find one that is more accepting of women, and more because the overall impact on the social imagination of girls, both secular and religious, would allow space for more spaces of authority fulfilled by women. The hypothesis here is that, by seeing a Protestant or Wicca priestesses receiving honours within the society, an Italian, Greek, or Spanish girl would receive a message that authority belongs to women as well; whereas today, seeing only Catholic or Orthodox male priests, she learns to imagine women as depleted of power, submissive, limited. Given the current status, the risks on the perception women have of themselves, and ultimately on their rights remain high, particularly in Southern Europe.

Nevertheless, this issue is overlooked in the constitutional conversations of several constitutional states. In fact, the exclusion of the womenFootnote ²¹ from the priesthood, and more generally their exclusion from religious power, apart from a few exceptions in the legal academic literature (par. 6), is neither considered a constitutional problem nor a tension between those two pillars of constitutional identity.

My purpose here is to demonstrate that this indifference cannot longer be sustained.

In the following Sections I will attempt to prove this.

5. The exclusion of women from the priesthood as an historical injustice

This inner conflict between two core elements of the European and Western constitutional identity becomes visible by using an interdisciplinary methodology and by applying the category of patriarchy, as developed in feminist thought. The use of this category allows one to see that the main religions existing nowadays in the European territory – Christianity, Judaism, Islam, Buddhism – have had a history marred by patriarchy. Particularly Christianity, the dominant religion in Europe, has actively asserted patriarchy in the West for 2,000 years. When constitutionalists first conceived the principle of religious autonomy, there were no women’s movements, nor sex equality; those men were immersed in a fully patriarchal society in which the exclusion of women from any public sphere was perceived as entirely natural.

By looking at the history of the loss of women’s religious power, it is possible to see that their exclusion from the priesthood is not the neutral choice of a religion but is rather part of a larger patriarchal design aimed to expel women from the public sphere, and to relegate them into being private. The exclusion of the women from the priesthood is one of the chapters of the affirmation of patriarchy, and when investigated diachronically, it reveals an historical injustice through which the state and religious institutions mutually coalesced to the detriment of women’s religious power.

A brief excursus of the history of European priestesses shows numerous discriminatory, and sometimes persecutory, aspects.

Archaeological findings made of the Palaeolithic and up to the entire Neolithic, with extensions into the Bronze Age, attest to the prevalence of a female religion in so-called ‘Old Europe’ (ie, Europe before the arrival of migrations that brought patriarchal values starting from 3000 BCEFootnote ²² ). The clear preponderance of female idols has led archaeologists to believe that Nature was worshiped and considered a Great Mother, and that the most significant divine figure was a female figure. In his classic When god was a woman Footnote ²³ Merlin Stone shows how female religious power was guaranteed both by the existence of a female Goddess before any other male gods, and by the existence of priestesses that served both female and male divinities.

Priestesses have continued to exist on European soil even with the emergence of more patriarchal societies such as ancient Greece and Rome.Footnote ²⁴ The Pythia of Greek Delphi exerted a strong influence in orienting political decisions, the Sybils held authority in the Roman Empire and several Greek and Roman temples were led by priestesses.

It was Christianity that brought to an end the figure of the priestess through a slow process that accelerated in the fourth century CE.

After the Edict of Milan in 313 CE by Roman emperor Constantine which legalised Christianity, the affirmation of this new religion took place, at first, with a coexistence of the old religions. While the pagan temples with their female and male clergy continued to exist, early Christianity itself provided that women could celebrate the Eucharist: women were, in fact, ‘ordained’ and there was a tradition of Christian ‘ministers of worship’, which was later denied by the Church.Footnote ²⁵ At this point, although the societies were deeply patriarchal, religious power was nonetheless granted to women by the persistence of pagan priestesses and by the active role women played in emerging Christianity.

The date of the end of the priestesses in Europe can be identified at 391–2 CE. In this time the edicts by Emperor Theodosius closed all the pagan temples: pagan priests and priestesses became illegal. While male priests could convert and find a new role in the Christian religion, women could not recover their role. Ideologies developed particularly by Saint Paul, Saint Augustine and Tertullian consolidated the prohibition for Christian women to speak in the assembly and relegated them to a more marginal role.

Indeed, the ancient pagan priestesses, although diminished, kept alive a lineage of medical knowledge and formulas inherited from the nights of prehistory, and thus women maintained a social role connected to the sacred. In the pagi (villages, hence the name paganism), women continued to have a role in the rites and in aspects related to the sacred, and they still exerted a certain sacred authority.Footnote ²⁶ Nevertheless, this authority went underground and lost its public recognition.

This sort of underground survival of the ancient female pagan clergy was radically abolished with progressive actions that culminated in the ‘gyno-cide’ of the witches, the last heirs of a female sacredness.Footnote ²⁷ During the period of witch-hunts in Europe (1324–1782), thousands of women were persecuted and killed in the fires of the Inquisition. With the witches, the last representatives of a female clergy were burned. From those fires the women barely recovered, surviving as sorceresses and healers, but only in the poorest strata of the population and now deprived of material goods, temples and social prestige.

After losing, through centuries, the control of their body, economy, politics, and legal status, this latest chapter of patriarchy finally deprived women of their religious power too. What was left to women was only the possibility of bargaining with patriarchy,Footnote ²⁸ and many did: in convents, abbesses and nuns were able to use the religious life to assert some levels of autonomy, independence and power within Christianity. But when it came to the possibility to autonomously perform rituals, or the role of being the main authority in relation with the divine, in a word, the altar was gone.

It is important to keep in mind this history even if nowadays religious institutions claim that the reasons for the exclusion of women from the priesthood are not of a discriminatory nature, but rather theological. For example, among the arguments with which the Catholic religion has motivated this exclusion is that of the persona Christi: since Christ is an individual of the male sex, and the priest when converting the bread and wine in his body and blood represent Christ and act in persona Christi (in the person of Christ), women could not perform this role. This is considered divine law. Linked to this is the argument that Christ chose to give the priestly investiture to the apostles and not to his mother or to the other women who followed him. ^{Footnote 29}

While affirming that the prohibition of priesthood comes from an unchangeable divine law, the Catholic church specifies that ‘the Church is woman, being the spouse of Christ’, that the salvation started with a woman (the Virgin Mary’s assent to Christ’s incarnation), and that the ‘mystique of women is more important than the ministry’.Footnote ³⁰

Another argument, used by the Catholic Church, not only eliminates any discriminatory discourse, but even reads the exclusion from the priesthood as a preference for women: they would be saved from the priesthood to enjoy the faith without the difficulties and the burden that hangs on the priest. Being able to cultivate the relationship with God without the worries that derive, for example, from managing the weight of confessions or from the tasks of pastoral life would therefore be an advantage for women.Footnote ³¹

Similarly, the exclusion from the priesthood in Islam is justified as not motivated by the desire to impose an inferior status on women, but rather by the promotion of a different role in social life, and ultimately with protective intent.

In this sense, one might claim that unequal treatment does not necessarily mean that equality is breached and that the internal view of religions should be considered: if autonomy and equal worth are emphasised, this could be reached while keeping the exclusionary priesthood definition.

It is positive that the current arguments to exclude the women from the priesthood are not those used by Saint Paul, Saint Augustin and Tertullian, nevertheless, the process that led to this exclusion proves that there is a need for reparation of an historical injustice.

A possible objection to the claim that there was an historical injustice that must be considered is the fact that after the priesthood was taken over by the patriarchy, it became part of the system. The patriarchal elements in the institution of priesthood per se, its hierarchical status, lack of transparency, might reflect general values traditionally associated with patriarchy that women want to reject rather than embrace. Therefore, what could be the interest of contemporary women in joining an institution that belongs so thoroughly to the patriarchy? Nevertheless, this objection is not determinant: women could, in fact, change the institution from within once they gain access, and furthermore the prerogatives that it implies and the spiritual power that it conveys are far stronger than the possible patriarchal debris that has accumulated over time on the institution of the priesthood. Actually, the ordination of women in many protestant denominations in Europe and beyond allowed women on the ‘inside’ to change the institution and bring issues for more equality (eg, the ordination of female bishop; the theological recognition of the motherhood of God) onto the agenda.

If this brief sketch of the exclusion of women from the sacred shows how this has been practiced with violence and coercion, the current violation of rights is clarified by analysing the ways in which religions practiced in the West treat women in relation to their access to the sacred.

6. The exclusion from the priesthood as an intolerable violation of rights in a democratic society

A contemporary argument that supports the need to rethink the principle of religious autonomy is based on the impact that the exclusion from the priesthood has on women, affecting their psychological well-being, personal development and social recognition.Footnote ³² If it were proved that the protection of those women’s rights is compromised, even indirectly, by the exclusion from the priesthood, this would become a religious rule no longer tolerable in a democratic society that affirms their equality as a self-defining trait.

One proof in this sense is that the exclusion of the women from the priesthood contributes to the maintenance of some typical patriarchal traits: a subservient position, foreclosure of positions of authority, and enforced silence of women.

Despite the secularisation of post-industrial societies, many women have received religious education since childhood, thus absorbing a message that sees only men in positions of authority (eg, priests, rabbis, imams). Women approach the sacred, generally, with passive roles of listening (eg, of religious functions) or of service (eg, cleaning of churches). Even when they can access the clergy (eg, Catholic and Orthodox nuns), women cannot celebrate rites (eg, the Eucharist) or the sacraments (eg, confession) or speak publicly to the religious community (eg, sermons) unless in the education of children (eg, teaching catechism). The latter is a typical patriarchal trait that sees women always being relegated to activities related to childhood.Footnote ³³

Even for women not raised in religious families, the exclusion from the priesthood can have an impact as the contact between the State and religion is very difficult to eliminate in practice. As religion is part of the culture, there are many religious ceremonies that have become part of the state rituality: for instance, when a funeral of public importance occurs, the ceremony is performed by a priest; or when a king is invested of their power, generally a priest performs the ritual. Furthermore, as many religious leaders also have a political influence, the media continuously report what they say (eg, the Catholic pope).

In a context in which many religions practiced in Europe structurally exclude women from access to the roles of sacred authority, and in a context in which there are no significant female religions (ie, with a Goddess and a substantial female clergy) in the European territory, the indifference of politics and law justified through freedom of religion does not stand the test of gender equality by which democratic systems are measured today.

Article 9 Section 2 of the European Convention of Human Rights (ECHR) would offer, according to Edoardo Dieni,Footnote ³⁴ an instrument to change this situation. This provision states that:

It becomes crucial to understand to what extent exclusion from the priesthood has an impact on women’s rights. Although it must be acknowledged that not all women share a common interest to become priestesses, and that religious women might be satisfied with the status quo, it is important to explore if the exclusion here discussed might have a broader social effect that impact women’s rights.

One of the first scholars to challenge the exclusion of the women from the priesthood was Ida Raming, in her seminal book The exclusion of women from the priesthood: Divine law or sex discrimination? Footnote ³⁵ wherein the author answered her own question by claiming that exclusion was discrimination.

In the US debate, Cass SunsteinFootnote ³⁶ claimed that sexual discrimination occurring in the religious sphere is among the most pernicious, in that it ‘can produce internalized norms of subordination’. He challenged the asymmetric rule (asymmetry thesis) according to which the rules of the civil and state penal system apply to religions, but not those concerning the anti-discrimination law of gender. Sunstein believes that discriminatory religious practices – including the exclusion of women from the priesthood – should be prevented by equating anti-gender discrimination legislation with civil and criminal law and extending it to religious denominations. According to this author, just as the state intervenes if a priest commits a crime or a religious institution evades taxes, it should intervene when the religious institution discriminates against women and violates their rights.Footnote ³⁷

Comparative constitutional scholar Marco Ventura affirms that there are two aspects to investigate to understand the impact of patriarchal religion on women’s rights: the first is to ascertain the ‘social role of women’ that religions produce;Footnote ³⁸ the second is to investigate ‘the status of women within groups that demand autonomy from the state’.Footnote ³⁹ Ventura observes that the two points are strongly connected in that religious law can make (or deny) a contribution to women’s rights in society in a relevant way, to the point of affirming: ‘by virtue of the crisis of state sovereignty and globalization, the new challenge to women’s rights seems to emerge, today more than ever, from religions and more precisely from religious rights’. Ventura addresses the problem of the exclusion of women from the priesthood, with respect to which it is observed: ‘the rigidity of the Catholic Magisterium … raises … the complex question of the possible coexistence between full protection of women’s rights in society and non-recognition of equal rights between men and woman inside the church’.Footnote ⁴⁰

The central point of this argument is that the disavowal of women’s equality in religious law can have an indirect effect in society. On this point, there are no studies of a European dimension that attest to how the fact of being immersed in patriarchal religions conditions the sense of social self-esteem of European women; however, on a comparative level, it emerges that there may be a correlation between access to the priesthood and the social prestige/self-esteem that a woman may enjoy.Footnote ⁴¹

A proof seems to come from Japan, one of the few industrialised countries where a female religion survives. This was the state-religion of the Ryukyu kingdom (1429–1879 CE), in the current islands of the Okinawa archipelago, before its annexation to Japan (1879 CE). This religion is composed of an exclusively female clergy which, albeit in decline, still operates in the islands of Okinawa archipelago. The different impact on the female psyche provided by being immersed in either a female or merely male religious order emerges by considering the differences between the women of Okinawa and other Japanese women. Okinawan women are seen as much more assertive, prone to divorce more easily if marriage doesn’t work out, and better able to deal with men who don’t want to take on family responsibilities.Footnote ⁴²

In those states whose constitutions recognise substantial equality, like the European states, the exclusion of women from the priesthood can represent a social obstacle to substantial equality, an obstacle that any democratic Republic has the task of removing as it produces a block to the development of women and encourages them to internalise a minority mindset whose effects go beyond the religious sphere: ‘Rules regulating the status of men and women, including in the appointment of clergy or in institutional structures that enforce anti-LGBT+ bias, may be “religious” in nature but they are also political; norms and practices which promote stereotypical masculinities and femininities about roles and about sexuality have profound impacts on the polity’.Footnote ⁴³

If this is the case, the idea that reforms of the status quo should be left to the spontaneous evolution of the religions, or to the courageous claims of progressive women within, surrenders an important role of constitutional law. So far, the struggles of women to change the patriarchal religions have not attained the same success as other feminist battles of history. While feminism fought to depatriarchalise the political, work, family, marriage and psychological spheres, the recovery of the authority in the sacred was never brought to the square in massive movements. There was never a ‘Let #MeToo Be a Priestess’ global campaign. One reason could be the non-religious matrix of feminism as a movement germinated from atheist Marxism. Another reason could be that the secularisation of societies made the problem less urgent. Another reason again could be the fact that religion is a field that tends to attract traditionally minded women and it is important to respect women’s freedom of choice to choose a traditional gender role. But what if, instead of this, it is the same constitutional mindset of Westerners that declined to use the legal and political arena to petition for sacerdotal reforms? Could the widespread consciousness that when it comes to religion, the State needs to step back have perpetuated a self-restraint in refraining from even raising the problem? Could it be that a shared sense of European constitutional identity has slowed a much-needed reform? The current debate on constitutional identity point to the risk of exclusionary notions of constitutional identity being embraced uncritically to protect conservative views.Footnote ⁴⁴ If this was the case, and in my opinion it is, it is time for a new constitutional sensitivity to emerge.

7. Measures that could be adopted by the State to resolve the inner conflict between constitutional principles

The main argument of why the law cannot resolve the current discrimination against women in accessing the priesthood lies in the fact that one of the foundations of Western democracies is the freedom of religion, definitively sanctioned during the Enlightenment and incorporated in all constitutions of Western states.

A State could not review the prohibition of female priesthood by appealing to a full guarantee of the religious sphere of women or of the principle of equality, by virtue of the supreme principle of autonomy of religions. This principle is a cornerstone of Western constitutionalism, and protects religions from state interference in their internal order (eg, the 1st amendment of the American Constitution: ‘Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof’; Article 7 of the Italian Constitution: ‘The State and the Church are, each in their own order, independent and sovereign’). Only religious institutions could allow women to become priestesses (as already foreseen by several protestant churches albeit, sometimes, with some constraints such as the prohibition of becoming bishops). It is symptomatic that, even in contributions that address the issue of exclusion from the priesthood as a problem of constitutional rights, the answer on how to solve it is assigned to the religious institutions and never to constitutional law.Footnote ⁴⁵

Another legal argument to affirm that the exclusion from priesthood is not a constitutional problem is that the ‘right to exit’ from a religion is a sufficient measure on the part of the state to protect the rights of women. If Catholic, Jewish or Islamic women choose to remain in their confessed faiths, it means that they do not perceive exclusion from the priesthood as a violation of their rights or accept it.

The problem of illiberal groups within democracies has long been faced by democracies with an attitude of tolerance of dissent.Footnote ⁴⁶ However, lately there are numerous shifts in the constitutional interpretation of supreme principles and fundamental rights, particularly when the vulnerability of a group comes into play. For instance, freedom of expression has been limited to protect against hate speech, and there are limits to allowed association and to the same freedom of religion when it infringes human rights.Footnote ⁴⁷ However, the prohibition of the sphere of state law is different from writing the contents of a faith. In fact, what meaning does religious freedom have if an external body can dictate its terms?

The way is not to force religions to ordain priestesses. There are other legal tools through which the law could promote this de-patriarchalisation.

A first instrument could consist of activating ‘policies of memory’ that make society aware of the tragedy of women’s exclusion from the sacred. This tragedy materialised both with the systematic demolition in the West of all female divinities which took place with the progressive affirmation of Christianity over paganism, and with the elimination of the priestesses. As seen above (Section 5), since the Roman Emperor Theodosius’s Edicts 391–2 CE that closed all the pagan temples, priestesses remained an archetype of the past until the 1970s when the West recognised the first Protestant minister and the first rabbi. Policies of memory that recall this process of exclusion, focusing, for example, in the witch hunt as ‘gynocide’ (killing of women),Footnote ⁴⁸ could foster an awareness of the exclusion of women from the sacred (eg, erecting statues to commemorate witches burned, the establishment of a memory-day for witch-hunting, TV programs on religious patriarchy, etc). The State could, through raising consciousness in the public opinion, prepare the terrain for a shift in religion institutions without directly interfering with their rules.

A second step, more problematic from a constitutional point of view but not impossible in European legal contexts, is to imagine state aid for women who want to practice as priestesses in (re)emerging female religions, and to fully realise, in this way, their spirituality. In the context of Protestant faiths and neo-pagan cults, for instance, there are several options for women to recover a role as priestesses. As before, the justification of this measure would be restoring an injustice from the past (eg, the subtractions of the female temples, and the hoarding of spiritual authority by men as well as the loss of property and material resources to practice religion). Although currently women can found their own religion under the umbrella of the freedom of religion, in practice, the historical exclusion from resources makes this difficult.Footnote ⁴⁹ Therefore derogation to the rule of the neutrality of the state in the states where laicitè exists, and state aids to women which want to open their temples could be justified precisely as a depatriarchalising measure to restore an injustice. Women need affirmative action that would be justified on the ground of a remedy to the legacy of patriarchy.

A third tool is the use of the State’s spending power to indirectly persuade the religious institutions to adopt more equal policies. For instance, in the policy known as Title IX, the US government imposed on religious schools receiving federal fundings to remove all the discrimination policies against women. A similar condition could be inserted to negotiate access to priesthood. No public money could go to restore churches (eg, in France and Italy) and to religious organisations which run state schools (eg, in the UK) for as long as they discriminate against women.

A fourth tool could take the principle of equality seriously and refuse any interaction with any religion at any level if that religion does not allow women’s priesthood. The consequence, for instance, would be that no masses/funerals/coronations/national memorial occasion/public celebration (eg, the reopening of Notre Dame Cathedral in Paris) performed by religions that adopt only male priests could be forecast on public TV, no news about the Catholic Pope, Islamic imams, Jewish rabbis, and other religious leaders should be given in the public TV for those institutions where women are excluded.

Those four avenues for law to address gender-based religious discrimination are not without problems concerning their implementation. Some of them might radically crash against the ‘internal’ view of religion.Footnote ⁵⁰ For instance, how would the law engage with likely challenges from religious actors against state intervention to facilitate women’s access to priesthood, challenges claiming that such action interferes with their core religious tenets? At a comparative level, the Indian Supreme Court’s ‘religious essence’ doctrine allows it to protect what it deems as core religious practices from non-essential ones, and to regulate state intervention accordingly. By applying it to the European context, one may say that the Catholic exclusion of women could hardly be removed, whatever measures Italy, Spain or Ireland (three Catholic countries) would take – as it relies on divine law, unmodifiable not even by the Pope – and it is therefore a core tenet of their religious identity. In those cases, the State should stay at the threshold and respect the Catholic Church choice. The task will pass on women and their right to exit. In a context in which temples for Protestant faiths that admit women, and temples to practice new-pagan cults to the Mother Goddess are financed by the State, women at least would have more options. And if they chose to stay in their patriarchal religion, at least the damages that TV broadcasting of a male dominated religious authority can make to even secular girls will be reduced by the measures above mentioned.

A fifth measure outside of an immediate legislative intervention, is an exercise of self-consciousness by the constitutional interpreters (qualified and lay, judges, legal scholars and the citizens) that consists of adopting a feminist reading of the constitution and realising the ongoing conflict between two supreme principles, both foundations of the constitutional identity of Europe: the principle of gender equality and freedom of religion. The constitutional dimension of this conflict lies in the fact that both principles are written in the constitutions of the European/Western State, both principles are perceived as core values, and both inform politics and political life. It is not unusual that pluralistic Constitutions face inner conflicts between supreme principles and fundamental rights, and constitutional law, through its balancing techniques, has the tools to resolve those conflicts. The novelty in this case is that, so far, the perception of this conflict is still blurred. While theological feminism has been denouncing the exclusion of women from the priesthood for decades, constitutional law is in difficulty when it comes to protecting the rights of women in this particular field. Acknowledging this conflict, admitting that even principles originating in the Enlightenment can indirectly protect patriarchy, enriches a feminist interpretation of the constitution. The difficulty that constitutional interpreters are facing can be reinforced by a special attitude existing around the formal written constitutions: formal constitutions are often perceived by the citizens, and even by legal experts, as totems. Just as the totem is, from an anthropological point of view, the protective spirit of a community, similarly the Constitution plays this role by guaranteeing an element of reference and unity in the conflicted realm of political struggle. While citizens of democratic states may harbour feelings of distrust towards politicians and politics, their trust in the Constitution, as the formal document, tends to be high. In the political imagination of European states, and more generally in Western democratic states,Footnote ⁵¹ the Constitution continues to be seen as the founding pact of coexistence, the document that brings together a political community, a guarantee of the last utopia – human rightsFootnote ⁵² – in the chaos of politics, a place of protection against the abuses of politicians. There is a widespread belief that the Constitution is the centring place of equality and that, if this is not achieved in society, the causes rely not on the Constitution, but rather on social factors extraneous to it.

While, on the one hand, this totemic trust in the Constitution has an important role of social glue, nevertheless it presents a problem. In fact, it somehow prevents critical reading of some constitutional provisions and leads to seeing the whole constitutional text as progressive and guarantor of rights. This totemic approach prevents citizens, and sometimes even constitutional scholars, from seeing the Constitution as a historical document, which was born at a certain time and is imbued with its values. Breaking this totemic approach and realising that the de-patriarchalisation process is not fully accomplished under the law, is an important step to improve a progressive constitutional identity.