Mikhail Antonov is a Professor of Law associated with the Law Faculty of the National Research University Higher School of Economics in Saint Petersburg

The historicity of this provision is patently ambiguous, as our “ancestors” who held political power in Soviet Russia never transferred any religious belief to the Russian Federation and its population. Rather, on the contrary, they did their best to exterminate religious beliefs through various atheist campaigns. According to the new wording of its Constitution (Art. 67.1, para. 1), Russia is the legal successor and continuation only of the USSR—not of the Russian Empire or preceding state entities (the Moscow Tsardom, the Kievan Rus’, etc.), so the connection with the imperial ideology of “Orthodoxy, Autocracy, and Nationality” does not actually work.

It might be that this amendment’s authors have nonetheless attempted indirectly to insert into the Constitution the idea that Russia is also a continuation of the Russian Empire (historically, it is only the Empire that could logically be the “transferrer” of the ideals and belief mentioned in Article 67.1). One cannot exclude the possibility that sooner or later the Russian Constitutional Court could interpret “continuity in the development of the Russian State” in its “thousand-years history” in this sense, overruling the plain provisions of para.1.

Literally, the use of “maintaining” in para. 2 in connection with three conditions (the ideals, belief in God, and continuity of state development) allows for the conclusion that these conditions make up, along with the “thousand-years history” (the fourth condition), the foundation of the “historically constructed state unity.” It is unclear whether “continuity of state development” is also transferred by ancestors—the amendment’s authors admit to connecting “continuity” either with “maintaining the memory of ancestors” (Russia maintains memory and continuity) or with the ideals and the belief (ancestors gave us ideals, belief in God, and continuity). In the latter case, the illocutive force of mentioning God in this context becomes even stronger—these three “donations” from ancestors are textually equal, being linked by the conjunctions “and” and “as well as.” One can construe further that these “donations” are given in their integrity, so that taking “belief in God” out of this scheme would undermine the “historically constructed state unity” in its entirety. This construction makes “belief in God” become a cornerstone of national unity and an important legitimation tool for the vital principle of one indivisible state.

Under this broad interpretation, the mention of God in Article 67.1 threatens the principle of secularity of the Russian Federation enshrined in Article 14 of the Constitution. Since Ronald Dworkin it has been well known that principles and values can collide and therefore can be subject to weighing and balancing. Theoretically, if the Russian Constitutional Court were asked to balance the principle of secularity with state unity, it is quite predictable from the Court’s actual case law and the general political situation that the latter would definitively prevail.

Thus, the benign reaction to this amendment from some law-and-religion scholars and from leaders of some Russian religious minorities seems to be unwarranted, while the fears of other religious minorities leaders are not unjustified. This provision and its implications stirred discussions not only in the Russian legal community but even caused a split among the drafters of the amendments. One concern was that this mention of God in the Constitution would be contrary to the 2004 judgment of the Russian Constitutional Court banning religious political parties, where the Court reasoned in favor of the strict division of religion and politics.

There is another, even more alarming concern about how the mention of God in the Constitution would work in the system of Russian law. Naturally, one can believe in God or gods in different ways and within various denominations. But para. 1 Art. 67.1 implies only one religious belief (“belief” here is singular) and one can reasonably expect that this “belief” would be interpreted as that of Christian Orthodoxy, “the special role” of which “in the history of Russia and in the establishment and development of its spirituality and culture” is recognized in the Preamble of the 1997 Russian religious law. It is unlikely that Russian courts would apply the characterization of “being transferred by the ancestors” to “non-traditional” religious denominations, as “traditional” is usually interpreted as “belonging to the ways of behaving or beliefs that have been established for a long time.” This wording may eventually provide the authorities with a legitimation tool for their repressive policies toward religious minorities in Russia.

It is true that the Constitutional Court in its Conclusion No.1-3 of 16 March 2020 stated that the mention of the belief transferred to the Russian people by ancestors does not mean the surrender of secularity and freedom of religion because, in its formulation, the text is not connected with confessions, does not proclaim any religious convictions as obligatory, and does not discriminate among Russian citizens because of their beliefs.

However, one cannot help but notice that the Court accessed only the text of the amendment (its formulation) and did not express its opinion about the systemic interpretation of Art. 67.1, para. 2 in connection with the 1997 religious law and with the preceding case law of this Court which unambiguously favors the conservative interpretation of the Constitution to the detriment of religious minorities. Rather, it is very likely that the mention of God in the Constitution is intended to be a “shelter” for the Court to protect it from accusations of “sham constitutionalism”—interpreting the Russian Constitution against its literal meaning. Now, with the “belief transferred by ancestors” enshrined in the Constitution, the Court can defend more effectively against such accusations.