We tend to read constitutions as the thing that protects minorities from majorities. Marietta van der Tol reads them the other way round. In her new book she shows how public order, national identity and the very language of tolerance have been used across Europe to make certain people less visible, without a single right being formally suspended. She joins Tornike Metreveli to walk through four countries where this has happened in plain sight.
Photo: Alfred Landecker Foundation
Dr Marietta van der Tol is Assistant Research Professor and Landecker Lecturer at the Faculty of Divinity, University of Cambridge, and an affiliated lecturer at the Department of Politics and International Studies. Her Landecker Lectureship carries a five-year project, Imagining Sacred Lands: the Russian World, Hungarian World and Holy Serbia. She is the author of Constitutional Intolerance: The Fashioning of the Other in Europe’s Constitutional Repertoires (Cambridge University Press, 2025) and editor of The Many Faces of Christianism: the Russian World in Europe (Brill, 2025). She teaches a module on democratic backsliding, and studied at Utrecht and Yale.
In this episode she takes the book into conversation with Tornike Metreveli, and the starting point is an awkward one. Constitutional government rests on the idea that the constitution restrains power. Her argument is that the restraint and the exclusion can run through the same instrument: intolerance rarely arrives as the suspension of a right, but as an interpretation, where a concept already sitting in the constitution is read so as to narrow who may appear in public as themselves. Behind that sits the older history of toleration, which means forbearance, and therefore carries the judgement that what is tolerated is wrong. Toleration made minorities visible on terms, while the modern language of freedom has coincided with pressure to make them less visible. Time does similar work, telling groups that they are not there yet.
Four cases then show four mechanisms. France turns on public order drifting from evidenced security grounds towards social norms, which costs everyone their legal certainty, since public order limits almost every right there is. The Netherlands shows the same concept used ad libitum, in a twelve-year redrafting of a partial ban on the full-face veil for which no data on the problem existed, passed on the proposal of a Labour-affiliated minister rather than the far-right party that began the debate, and then deprioritised by the mayors of the major cities. Hungary shows the direct constitutional route: a Constitutional Court confined to procedure, a rewritten constitution, and a church law under which congregations had to be re-registered by a two-thirds vote of parliament that governed access to state subsidy. Poland shows the mechanism working without the law, in family charters drafted by an NGO, signed by local authorities, ultra vires and eventually struck down, but producing LGBT-free zones that echo Judenfrei in the meantime.
The last stretch asks whether any of this is reversible. Her answer refuses the framing of liberalism against illiberalism, asking instead what liberalism was actually for.
The episode and the transcript
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The transcript has been edited for readability. Filler, false starts and repetitions have been removed. Wording is otherwise the speakers’ own. The episode was released on 31 January 2026.
The concept: what constitutional intolerance is
Tornike Metreveli: Welcome to Religion in Praxis. I’m your usual host, and I’m here with Marietta van der Tol, who is Assistant Research Professor and Landecker Lecturer at the Faculty of Divinity, University of Cambridge. Her research interests are in the comparative study of politics, law and religion. Her Landecker Lectureship carries a five-year research project titled “Imagining Sacred Lands: the Russian World, Hungarian World and Holy Serbia.” She is the author of the book we will discuss today, “Constitutional Intolerance: The Fashioning of the Other in Europe’s Constitutional Repertoires,” published by Cambridge University Press. She is also editor of “The Many Faces of Christianism: the Russian World in Europe,” and she teaches a module on Democratic Backsliding at the Faculty of Divinity and the Department of Politics and International Studies. Marietta studied at Utrecht and Yale, has received numerous awards, and is a wonderful person. So we are very, very happy, Marietta, to hear your reflections today. Welcome to Religion in Praxis.
Marietta van der Tol: Thank you so much, Tornike. It’s a real pleasure to be here.
Tornike Metreveli: So for our conversation we will have four more or less broad themes. The concept itself, constitutional intolerance, which is a very interesting framework that the book unfolds: what it means, how it differs from the conventional understanding of constitutions as rights-protecting instruments, and so on. Tolerance and its limits. We will go through the case studies, which are the very rich and exceptionally rich discussion of four national examples. Then we will look into the implications. And in the meantime, back and forth, we have thirty to thirty-five minutes to retain the attention of our listeners.
So let’s start from the elephant in the room, the concept itself. How does constitutional intolerance work as a framework, and how is it different from other sorts of rights-protecting instruments, or from the role of the other, if you will, in European legal imaginaries? What is it about this concept that listeners should know?
Marietta van der Tol: Thank you so much for that question, Tornike. So, constitutional intolerance. It’s sort of an oxymoron, right? People don’t think of tolerance in conjunction with the constitution. … And one of the things that I’m trying to say here is that we need to work with this tension, because somehow there are forms of intolerance that are expressed through the law, and sometimes through constitutional texts, but sometimes also in other ways that people try to work with constitutional repertoires, as I call it.
Now, that’s sort of jargon for the things that you can and cannot, or should and should not, be doing with your power when you are in power, and that power is usually constrained by the constitution.
What we are seeing is that there are several things going on. There is a historical line that I try to explain in my book, which is about toleration in the early modern period, where the logic was: if we don’t tolerate you, you are kind of less visible in society, and if we do tolerate you, you are more visible in society. So I’m really thinking through the question, how did we go from toleration to the language of freedom? Well, on the other hand, there is a sort of inversion, from visibility to increased invisibility.
Fashioning the other
Tornike Metreveli: And you introduce the idea of fashioning the other. Who is the other in European constitutional practice, and how has that been constructed, or how has it shifted over time? What is this other?
Marietta van der Tol: Yeah, that’s a really good question. So it is usually not the same anywhere and anytime. It’s a really flexible thing. There are different groups that can fit into this category of the other. In early modern toleration we think about Protestants and Catholics, for example, or we think about where Jews fit in, or where atheists fit in.
And in the early nation state, the idea was: we need to get beyond our religious differences and create something else. But that something else, is that ethnic? Is it religious? Is it based on language? Is it based on where your parents were born? Is it based on whether you were born within a certain territory or not? And we find that the other is articulated along those different lines. So it might be that somebody is from a different ethnicity, or somebody is from an unusual religion, or somebody is presumed to be a migrant. Or somebody might have lived in the community for centuries, or their family has lived in a community for centuries, but because of a combination of their ethnicity and religion they are presumed to never be quite one of us.
Toleration and time
Tornike Metreveli: Yeah, it’s interesting. In chapter three you link toleration to time. Can you explain this? It’s a very interesting temporality aspect, if you will. How does temporality become a tool for exclusion? For example, are some groups told they are not ready for full inclusion? How does temporality work here, what job does it have?
Marietta van der Tol: Yes, it has lots of jobs. I think the most important thing is that when we think of time, people think of themselves differently in relation to time. You might think, I’m looking at my clock, but you’re already at least one hour ahead of me. So what time is it? Is it 9:30? Is it 10:30? There is no single answer to this.
But that’s also true in the sense of meaning. Some people understand their time in relation to religion. They might think of the liturgical calendar, the liturgical year, for example. Other people might have a story about where history is going, and they have a sense of where they are within that history and within that development of history.
Now, in the history of toleration, the logic initially was: maybe we can tolerate the non-Christian on the assumption that they will become a Christian. And there is something similar about the language of assimilation, right? Becoming a Christian was in a way a way of having to assimilate to the main community. However, that didn’t quite work. It turned out that when you left everything to people’s consciences and their own freedoms, actually, that doesn’t automatically lead to people becoming Christians. And that caused some reflection within even political theory. Like, what do you do with the outcome of disunity, and the outcome of differences that remain, not differences that will eventually go away?
And there’s something similar in the language of minorities. Are we asking of Jews to stop practising, if they are practising, and do something else and be citizens in a more traditional way? I’m sort of thinking with the nineteenth century in mind here. But also migrants: how much do we expect, once they have learned the language and once they have completely integrated? There is still this enduring sense that they’re not quite from here, right? People might ask you the question, but where are you really from?
And I think we have to understand that some of that comes with that temporal difference, where the language might be, well, they’re not as developed as we are, they’re not as enlightened as we are. There was a time when people talked about Muslims as a group of people that was in need of an enlightenment. So it’s a way of saying, “we are a bit further along in history and the others are hopefully going to catch up at some point.” But there is not just a language of othering, there’s also a language of who is kind of better than the other here.
Tolerance and toleration
Tornike Metreveli: I think it opens up a very interesting distinction, which I find very interesting conceptually, politically and legally, between tolerance and toleration. So can you explain to the listeners what the difference is? Why should one be careful about this? What does it mean politically, what does it mean legally? What is the distinction between them that matters?
Marietta van der Tol: Yeah. So tolerance and toleration are distinct concepts, you’re quite right in picking up on that. And I think the importance here is that we have come to think about tolerance and toleration in our time as being able to be comfortable with difference, and not being difficult when somebody else wants to do something slightly differently or has slightly different beliefs.
But actually, when we look at the history of toleration, there is something more going on. There is a sense of forbearing. And that sense of forbearing also makes the implicit judgement that the other does something wrong. And not just something wrong: in the language of the early modern world, people thought of this as evil. Not evil as in bad, but evil as opposed to the good. And so there’s a slight difference there, but it was anything that got in the way of the Christian story at the time.
And when you think of toleration in that early modern period, it’s really a question of, how do we live together with those differences when we think the other is kind of evil and it’s not going away, right? So what do you do? And so toleration is really a way for authorities to think through the question of balancing interests. So not every difference means that you need to crack down on it. Certain differences can be tolerated.
And in my book I explain that this was not a random decision. People didn’t just wake up thinking, oh, I will be tolerant today, or I won’t be. People were thinking very carefully about, you know, these minorities: are they contributing to the economy? If they are important to the economy, maybe we will tolerate them. It might be that people had a sense of how different it was. Was it a major difference or a minor difference? Not every difference counts the same. But also loyalty: in case of a conflict or a war, will you be fighting on our side, or do we think there might be an issue there? And it also had a lot to do with the outward preservation of unity, where there was such a concern over the idea that you had to maintain this one identity of the local community.
Now, in my book I don’t spend all the time talking about early modernity. Actually I just do that for one or two chapters. But what I’m trying to do then is talk through how that language of having to be united, having to be one, continues in the nation state, where the fault line might not be religion any more, but where there is still a question of how we live with differences, and what we do when we really don’t get on. How do we find solutions for the tensions that are just going to be there in society?
And I find that toleration in the legal sense still has these three things. It is still using some sort of power: think again about the authority, what is the authority doing with power? There is some articulation of otherness here, vis-à-vis the nation rather than a particular religion. And the third thing is that there is a tangible impact on the presence of a minority in public space.
And so there is the role of power, or the law, and there is the articulation of otherness, and then there is an impact on visibility. It really circles back to my initial question: if we think we’ve become tolerant, how have we come to a place where we are really comfortable with privatising religion, with assuming that religion has a secondary place in public life, if any place at all?
Case study: France and laïcité
Tornike Metreveli: Yeah. I think now we’re reaching the point where the material is exceptionally rich, besides your rich theoretical grasp, and we’re going to the case studies. I highly recommend the teachers who listen to this, as well as students who are seeking shortcuts in everything, to go in depth into these chapters. There is real gold here, because the book actually unfolds four very interesting cases, and it is very well versed in the broader sociology of religion literature, as well as, I’d say, a lot of philosophising questions, and it is wonderful for discussions and seminars as well. So I highly recommend students listening to this to go into the very depth. Most of this, I guess, is available in most of the libraries; at least Lund University Library provides free access to it, because it is an open access book.
So let’s go into the question itself, about the cases. France, laïcité, to elaborate a little bit, is often presented as a neutral secularism. You call its interpretation “dynamic”, which is a very polite word, perhaps, for something else. So what is laïcité actually doing in practice?
Marietta van der Tol: So laïcité in France, I think it depends a bit on how you translate it. In English we talk about secular or secularism. But when you look at the French word, there is the word “lay” in it. So is the idea that the church was very very clerical, and what the state was saying – well, these clerics shouldn’t be so important in public life and in political life, actually, what we want is a more lay state?
Now, this has been recontextualised, I think, in lots of literature, as a proxy for secularism, but I think there’s something more nuanced going on there. And one of the things that’s going on there is that the laïcité Act, which was enacted in 1905, so just over a hundred years ago, was also trying to create more space for minorities. So that might be Jewish minorities, it might be Protestant minorities. But the idea was that if you decrease the power of the Catholic Church in public life, given its dominance historically in this particular country, maybe other minorities can have more room.
I don’t think that is the same as necessarily secularism as we would colloquially understand it, but there was something else, and that something else is an institutional separation of church and state. So that’s the simplest explanation of laïcité.
However, when you look at the French literature on this topic, you see that there is, reasonably, a conversation about whether the language of laïcité has developed slowly into something else. And over the last thirty years we’ve seen that laïcité has often been used to talk about culture, to talk about the separation between Muslim identities and French culture. So that’s one example. But, you know, when you look at the literature, it’s also the Protestants who would say, well, it’s become, and also the Catholics, who say, oh, it’s become a little bit too negative towards religion.
Now, in the book I want to pick that up as a conversation and then say there is still one more thing to be seen here. And that one more thing is basically the connection between the language of laïcité and the language of vivre ensemble, which is a more recent expression of, you know, how do you then live together? The vivre ensemble language is, again, not very hospitable to people who might not embody a very traditional sense of what it means to be French, or at least, according to whom is actually the question, you know, French according to whom?
But what we see in the legislation, and this is where the specificity of the chapter goes, is that certain constitutional concepts are interpreted along the lines of what laïcité and vivre ensemble might request from it. But I’m critical of that request, as it were.
And I’m really saying, when we talk about public order, we’re talking about a very, very fundamental concept in constitutional law. Just about any right that people have can be limited on the basis of public order, sometimes also public health, or traffic, or certain really pressing social issues that warrant state action, that then can lead to usually temporary restrictions of one’s rights. Now, that sounds all very technical, but what this is really about is that the state cannot just choose to restrict your right because it feels like it today.
And what I see in the language of public order is that there is a shift in how this is used. So traditionally public order is about security issues that you can evidence, that you can say, it is really an important issue, it happens so much that the state needs to do something about it. And it might be in the sphere of protests, for example: they get out of hand, and then maybe the government can say, “maybe we need to do something about the time when, or the location where, different groups protest?” This is one example.
But what we’re seeing is that the shift is going into social norms. And so if we want to restrict a right based on social norms, it’s much easier to do, because it’s no longer just about security. It’s more about how a society feels, or what the politicians think about how society is feeling. It’s much less stable. And the people who study law will then ask the question: “but does that not detract from people’s legal certainty? People have to know what their rights are before the law. You cannot just change the law. You cannot change the law and tell somebody afterwards that they’ve done something wrong, if you haven’t told them the law actually changed. You can’t quietly do this.”
So there is a sense that citizens need to be able to align their behaviour to what the legal expectations are, so that they don’t get caught out by sudden restrictions of their rights, or even worse, prosecution under the criminal law. So the shift from the security language to social norms is really significant, really, because it’s not just about religious freedom, it’s about a whole lot of fundamental freedoms that can potentially be affected.
Case study: the Netherlands and ad libitum public order
Tornike Metreveli: I would say, probably not to miss some of the aspects from the other cases, I’ll move on to the other three cases briefly, because I think it’s a fantastic comparative framework, very rich empirically. So the Netherlands is another one, which has a reputation for liberal tolerance, as we know. Yet you describe it as ad libitum, right? Use of public order, meaning that authorities apply it however they wish. So how does Dutch tolerance become Dutch exclusion, or whatever you call it?
Marietta van der Tol: Yeah, so I use the language of ad libitum here. This is mostly a reference to music, because when you play music, I don’t know whether you do, Tornike, but I really enjoy playing the piano sometimes. And when I come to the end of a piece, sometimes it says ad lib, and you can improvise a little bit around some final point before you then reach the conclusion of a piece. But we also know when a musician is really overdoing it, when it’s going on a bit too long, or it’s doing something that’s not really fitting with the full piece of music. And when I talk about the unlimited use of the law, I mean something similar, where there is some room for discretion, but sometimes people are using it in a way that just very clearly doesn’t fit in the overall structure.
And so what I’m describing here is not just a copy of what is going on in France. To some extent there are similarities between the Dutch discussion on public order and the French discussion on public order. But what I find really interesting is that we’re talking here about a piece of legislation that took about twelve years from the initial suggestion to the eventual law. Multiple legislative proposals. There have been lots of debates in parliament. Lots of lawyers have had to have opinions about this, sometimes on behalf of the Council of State, for example, the main advisory body of the government, but sometimes also scholars, legal scholars in particular.
So imagine, for twelve years people are thinking about a law, but the law was really poorly written, because time and time again the main advisory body of the government said, well, so what is your substantiation of public order? And every single time there was a slightly altered proposal of this law, there was a slightly altered motivation as to why public order was invoked. And it’s really a dance around a problem that, in this particular case, was not a real security problem.
Now, the case that I’m talking about is about a partial prohibition on the full-face veil. So this had to do with the question, can you wear a full-face veil in public transport or in certain public spaces. But there was no data on whether the fact that some people were wearing it was causing any problem. In fact, there was no real data available about how many people even were wearing the full-face veil. So it’s touching on this question: is it a problem there, and is it a problem big enough to then warrant state action? So that is the way in which I have worked around this ad libitum thing, where it’s not just a copy, but it’s this dance around public order of slightly different answers, none of which really work.
Now, at the end of the day, I think quite an interesting twist in this story is that the law ends up being enacted, but not on the initiative, in this case, of a far-right party. The far-right party was the initial instigator of this debate. But the final proposal actually came from the cabinet itself, and from a minister who was affiliated with the Labour Party, which I think is really, really interesting.
Anyway, long story short, the law gets enacted, and the first thing that the mayors of several major cities in the Netherlands say is, well, this is not a priority for our law enforcement. So, right, you spent twelve years debating this thing, it’s cost lots of resources, lots of parliamentary time, to prop this thing up, and then it is just one more symbolic thing.
So you might wonder, why did you even include this case in the comparison? And I think what is important here was the intended outcome of less visibility, which was not the outcome that was achieved. But what is important here is that it’s not just a shift in the conversation from public order, from security to social norms, but there was this whole palette of arguments that was used, none of which were relevant to the matter of public order.
Case study: Hungary and constitutional identity
Tornike Metreveli: Yeah, yeah. Hungary is another exceptionally rich example. Hungary’s 2011 Fundamental Law is your example of constitutional identity as a political weapon. For listeners unfamiliar with it, what did Orbán’s constitution actually do, and why should Europeans elsewhere pay attention to it?
Marietta van der Tol: Yeah, so this is a really, really interesting case. I spent a lot of time learning Hungarian, visiting Hungary.
Tornike Metreveli: Which is by default already a very impressive effort. I mean, we should highlight that.
Marietta van der Tol: Well, it’s a work in progress.
Tornike Metreveli: Yeah, learning Hungarian.
Marietta van der Tol: Yes. But I think it’s really important that when you engage with countries that are initially unfamiliar to you, you make an effort to learn a language. I really think that’s quite important. But what I’ve really enjoyed in this process is getting to grips with some of the nuances that I couldn’t really see from the outside by just doing desk research.
And so you asked what happened with the constitution. Some people might say, well, the constitution got amended, or even completely rewritten in this case. What, why should we care? What difference did it make? And I think what is really interesting is that there were several things that precipitated the situation in Hungary as it is today.
So one of the first things that the Fidesz government did was limiting the powers of the Constitutional Court. So that meant in this case that the Constitutional Court could only decide whether the procedures had been followed properly, but not really whether certain laws were in tension with the constitution on a substantive level. And so it’s a way of saying, you know, you can be a traffic warden, you can see if we follow the right procedure, but you can’t really tell us if your car is broken, right? So it’s that sort of comparison.
Then they changed the constitution. In their constitution there was an expression of a language of Christian identity, or Hungarian identity. And it’s a bit ambiguous whether we’re talking about Hungarian here as a state, or as a group of people who hold passports, or if we’re talking about an ethnic group of Hungarians, some of whom live in Hungary and some of whom live outside of the borders of Hungary. And so that’s interesting, there’s an ambiguity there.
But then one of the things that was put into the constitution was this language of a national system of cooperation. And there’s this idea of cooperation. Those of you who have studied law will think, oh, that sounds really German, because Germany also has its model of cooperation, where the state can work together with different churches. So again, people might ask, so what’s there to see here?
So there’s a couple of other things that happened later. And one of them is that the church law was revised. Now, the church law was a really important tool, I think, in the process of deciding where government funding could go. And so, hear me out. One of the things that happened was that the churches were told that they needed to re-register as a church. There was a deregistration, which meant that churches lose their legal personality unless they managed to re-register. Now some could re-register as a church, some, by force of circumstance, were forced to re-register as some sort of organisation or society, or even a charity. But the question whether they were a church was not one that they could answer for themselves. So the church had to go to the parliament, and ask whether the parliament could decide with a two-thirds majority whether or not they were a church.
For those who are invested in religious freedom, this will sound to you as a thing that’s obviously in tension with the freedom of religion. But the story doesn’t end there. So there was also a discussion about whether churches that we haven’t recognised as a church in parliament can still use the word “church”. Now, eventually they were allowed to, but there was a mention of restricting even the use of the word “church”.
But the real meat on the bones here is that if you were able to re-register as a church, you were able to access, or continue to access, government funding – for subsidies, for example. If you couldn’t, you could still apply for certain things, but not for the quite extensive subsidies that were available for what then became effectively the state churches. So I think at the time of writing the book there were about twenty-seven churches fully recognised, but there were also churches that were not, and churches that were partially recognised.
And what’s really interesting here is that the churches that ended up being recognised tended to be quite friendly with Fidesz circles, whereas the churches that struggled had more issues with that sort of political alignment. And one of the cases that I’ve detailed in the chapter is about a church that doesn’t just lose its church status initially and lose access to funding, but is then also accused of fraud, is facing all sorts of investigations that never lead to anything. At some point, I think, a treasurer is put in administrative detention and then eventually released again. But what we’re seeing is really a pattern of harassment on top of a restriction, indeed a breach, of their religious freedom. And what is interesting to me is that this happens with an appeal to national cooperation. So certain people fall outside of that. So, again, think of the nation and its others.
But what I found really significant is that when you visited institutions of the favoured churches, if I can call them that, so much of the real estate was really nice. It was, you know, gorgeous buildings, some of them renovated to quite a high spec standard. And then when I visited the offices of one of the places that was in trouble, it was like walking back into the seventies or the eighties, with some sort of even half-broken chairs to sit on, in one case. But this was really a charity that had chosen to put all its remaining resources into the support of homeless people and the support of the Roma community, and so they weren’t spending this money on themselves as much. And I found it very interesting that some churches are really elevated, and it was visible from the street which churches were in favour. And it stood out to me, quite the contrast with this one particular church that got harassed this much.
Case study: Poland and the LGBT-free zones
Tornike Metreveli: And briefly, maybe about, oh, I’m hearing myself twice. Briefly, maybe about Poland, and you mentioned LGBT-free zones, or what is labelled as pseudo-constitutional. What makes them “pseudo”, and does that make them less dangerous or more? Just a quick recap on the whole dynamics of Poland, perhaps, and then we can conclude with maybe more contemporary reflections, and then we’re running out of time.
Marietta van der Tol: Yes. So the case of Poland is different, in that I chose to include a chapter on LGBT identities, and it was mostly a strategic choice, because I wanted my book to challenge people who care about religious freedom as much as people who care about LGBT freedoms. I don’t think these clash as hard, but there are a lot of people who think that there is an inherent tension between religious freedom and LGBT rights. I genuinely think that those are mostly constructed tensions for legal purposes. There are people who are invested in litigating these sorts of questions before the highest courts. But I really wanted my book to be able to speak to different audiences.
So the case of Poland I included because of this case of LGBT visibility, but also because there was an interesting dynamic relating to Hungary. Some people would say Hungary and Poland were at a time both a sort of naughty bench of Europe, and many people put them in the same bucket. But what I was really trying to show is that these are two completely different contexts, in which different repertoires are used.
So in Hungary, Fidesz had a two-thirds majority in parliament and could change the constitution. Whereas in Poland, that was never the case. And actually then what you see is that the parliament cannot actually change the constitution, right? So it was a different discourse about what is in the constitution, and can we, you know, how do we interpret certain things differently? Do we stretch the room that we have within the constitution? That happened in all sorts of respects.
But the one thing that I’ve lifted out in Poland was the family charters, that at some point were signed by several local representatives. And this was at the time depicted as local rural resistance to urban liberal normativity, and also to the European Union, of course; there’s a dynamic there too. But it was really important to discover in my research that this was actually a highly orchestrated matter that was geared up by an NGO that was really invested in the language of marriage, and the language of marriage being between one man and one woman. And it wrote a family charter that was a template for other people to fill in. But it also came with a flyer that explained how this was really a reflection of what was truly in the constitution. But it wasn’t actually in the constitution: it was what they were trying to make people believe was in the constitution.
So in my book I talk about the way in which this is para-legal, in that this NGO is not a state, it’s not a function of the state either. They are really not in any position to interpret the constitution. So we call this, in legal language, we call this ultra vires. But what is interesting is that the family charters were signed by several local authorities. And that then raises the question, has it become in some way or form law? Now, the Supreme Administrative Court ended up striking down one of the major family charters, and then the others made their way through the legal system and ended up being annulled as well.
But what was interesting here is the language around the constitution. It was also important to see, again, the use of power, the language of the other, and also the impact on visibility. So the artistic expression of this family charter was the language of the LGBT-free zones, which is really an echo of Judenfrei, the idea that you can have Jew-free spaces. So it invokes the wartime kind of rhetoric. But this wasn’t artistic, like protesters or so; it was a way of trying to say, well, what we’re doing here is really exclusionary. And the Supreme Administrative Court said, actually, even though it’s not law in a traditional sense, there are certain consequences, like, you know, making it normal for people to express their prejudice in these public spaces. That’s a very dangerous precedent.
So there you have it. Between those four cases, I talk about how concepts in the law are interpreted differently. Or sometimes, you know, a parliament might attempt to give them different meanings. Sometimes there is an attempt to rewrite or amend the constitution. And in some cases, where you cannot do that, there’s an attempt to say there’s something in the constitution that’s not actually there. But if you say it often enough, people might not challenge it.
Can constitutions be reclaimed?
Tornike Metreveli: And the last question is, if constitutions can be tools of intolerance, can they also be reclaimed? Is there a constitutional comeback? Is there a path from constitutional intolerance back to constitutional protection? And we’ll end there.
Marietta van der Tol: Yeah, that is a fantastic question. And I think that is the question that many of us in my field are asking ourselves. And we’re also asking this question from the perspective of what constitutions look like after the populist wave, because a lot of these changes have been precipitated by the influence of right-leaning parties and right-leaning movements. And that’s not to say that they don’t ever express legitimate concerns. But what we are seeing is that we are in a chapter where there are – and we’ve seen it in America, of course, in a more exaggerated form – certain liberties taken with the law, certain liberties taken with the constitution. And, you know, as lawyers, they say it’s for the courts to confirm and challenge that. But observers have their own stances on these questions.
And I think one of the things that this moment has revealed to us is quite how much of our constitution relies on good faith behaviour. So the assumption that people act with the power that they have in their hands in good faith. But what do you do when they don’t? And it’s a reminder that the law is not this automatic thing, that as long as it is there we will all protect each other. What we do see is that there are abuses of the law that can have a very tangible impact on minorities of different descriptions. I would say it’s no longer just religious or ethnic or sexual, it’s also political, like which side of the political spectrum one is on.
But I think the road back to a more stable dealing with the constitution is a reorientation on the value of the constitution, and allowing us to negotiate the tensions that are always going to be there in society. I already mentioned those tensions earlier in this conversation: tensions are not going to go away. They might transform, they might come in a slightly different jacket, but these tensions we cannot wish away. So I think what we need to return to is this sense that the constitution is meant to protect all of us. And it might mean that we think again, once the populist wave is over, how do we protect the interests of people right, left and centre, so that they feel represented in a way that they feel their dignity has been respected, but also in a way that is actually fair, and that’s not leaning towards or favouring people either left or right of the political spectrum.
Now, if you’d allow me, I think I would like to say that some people have framed these issues as a matter of liberalism versus illiberalism. But I think what we need to understand is that right-leaning politics builds on the liberalism that the left also built on. It’s not actually that different, but there’s a different emphasis on the values that are expressed within it. And I think what the solution might be is not so much a return, or going to another -ism, but perhaps a reflection on what liberalism actually is. Because today it means whatever one makes it to mean. But historically we can have some opinions about what it means in terms of institutions, processes, protections of items that are not really left or right leaning in and of themselves, but are really, dare I say, when communities have struggled to live together, the sort of things that have for a long time allowed them to make peace with their differences.
Tornike Metreveli: What a way to finish! Thank you so much, Marietta. Who belongs is never settled, that’s our takeaway, it’s always being written. Remember, tolerance has terms and conditions. Now go and argue with a lawyer about what tolerance really, really means. So stay curious and keep listening to Religion in Praxis. Thank you very much for your attention.
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