Equality and Minority Rights

Abstract

The rhetoric of equality has been particularly popular in the post-Communist states of CEE due to the emergence of greater inequality associated with the introduction of the market economy, coupled with deeply ingrained egalitarian societal attitudes. This explains the inclination of constitutional courts to use the equality provisions generously. The Chapter opens with a general discussion of the role of equality in constitutional review. It then focuses on issues of gender and sexual orientation, and also discusses the special case of affirmative action in case law of constitutional courts in CEE. The Chapter then turns its attention to the question of minority rights in CEE. An overview of minority issues in CEE is followed by a discussion of the constitutional design of minority rights, as fundamentally individual rights rather than group rights. Special cases of linguistic rights and of minority representation in public authorities are then discussed. The Chapter concludes that the constitutional rules on minority rights, and, in particular, on the rights of ethnic and national minorities, became something of a problem for constitutional courts: they were, by and large, neither intellectually equipped nor morally and politically prepared to interpret them in an expansive, generous manner. As a result, when it comes to minority rights and ethnic relations in general, the contribution by constitutional courts has been modest and disappointing.