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1 - The Constitutional Establishment of the Gender Order

Revolutionary Times and Exclusionary Constitutionalism

Published online by Cambridge University Press:  29 September 2022

Ruth Rubio-Marin
Affiliation:
Universidad de Sevilla

Summary

The first constitutionalism was a gender exclusionary constitutionalism, which simply took a foundational gendered political order for granted, drawing from Enlightenment theories prevalent at the time. This chapter explains how the marital contract and the separate spheres tradition excluded women from the realm of equal citizenship rights despite constitutional appeals to the notion of equality. It shows how women were active in revolutionary moments and also seized to intervene in constitution-making from the very start and to advance various causes (e.g., temperance, female suffrage, abolitionism). The chapter then proceeds to show how women eventually conquered voting rights and the recognition of constitutional sex equality, along with provisions protecting motherhood and the family, first during interwar constitutionalism and then in post–World War II constitutionalism, and shows how none of this was sufficient to tackle the legacy of the separate spheres tradition, especially given the cultural hegemony of the breadwinner family model in the postwar years.

Type
Chapter
Information
Global Gender Constitutionalism and Women's Citizenship
A Struggle for Transformative Inclusion
, pp. 26 - 80
Publisher: Cambridge University Press
Print publication year: 2022

1.1 The Revolutionary Moment and Women’s Citizenship

In France, after the March on Versailles on October 5, 1789, women presented the Women’s Petition to the National Assembly, proposing a decree that would give women equal rights. Only two years later, in 1791, in her Declaration of the Rights of Women and the Female Citizen, Olympe de Gouges affirmed that a “woman is born free and remains equal to man in rights” in a text advocating not only universal suffrage but also women’s access to public office, equal property rights, and decision-making powers for husbands and wives. Six decades later, in 1848, on the other side of the Atlantic, the Declaration of Sentiments was adopted at the Seneca Falls Convention, the first women’s rights convention organized by women. Its words offered a testimony of the failure of previous women’s revolutionary emancipatory ambitions against men: “Having deprived her of this first right of a citizen, the elected franchise, thereby leaving her without representation in the halls of legislation, he has oppressed her on all sites. He has made her, if married, in the eye of the law, civilly dead.”Footnote 1

The revolutionary emancipatory ambitions that succeeded had been primarily the ambitions of men. Whereas in 1776 the American Declaration of Independence proclaimed that “governments are instituted among men, deriving their just powers from the consent of the governed” after affirming that “all men are created equal … and endowed by their Creator with certain unalienable rights,” it would not be until 1789 that the French Declaration of the Rights of Man and of the Citizen would declare the “freedom and equality of men at birth” (italics are mine). Both documents, signaling the birth of modern rights-based constitutionalism resulting from the French and American Revolutions, clearly used a universalist language, inspired as they were, by enlightened theories of natural rights and human reason. Yet both were also using the word “men” literally and not simply as a generic and disembodied expression of the universal person. No woman was included in the drafting bodies of these declarations. Women were simply intended to be excluded from the consenting sovereign: they were denied both political rights and independence as well as equality in the domestic sphere of marriage. It would take more than a century for women’s suffrage to start to become a reality, and even so, this would be limited to a few places around the world and would leave, for the most part, no constitutional traces. The ideals of liberty and equality were eclipsed by fraternity and were given “masculine features.”Footnote 2 Moreover, the term “men” in the declarations was not meant to include all men but rather only white people and property owners; that is, a small minority of the population in both nations, the minority considered suited for citizenship. Women had to rely on their husbands’ goodwill – something that Abigail Adams (the wife of John Adams, drafter of the Massachusetts Constitution and future United States president) knew well when, in March 1776, anticipating the Declaration of Independence, she famously wrote a letter to her husband begging him to “remember the Ladies, and be more generous and favorable to them than your ancestors. Do not put such unlimited power into the hands of the Husbands. Remember all Men would be tyrants if they could.”Footnote 3 How much of his wife’s advice John Adams intended to follow or could take on, we do not know. What we do know, however, is that Samuel Chase, signatory to the Declaration of Independence and future Supreme Court justice, wrote in his treatise Baron and Feme that “the law of nature has put [a wife] under the obedience of her husband.Footnote 4

It is in fact an irony that the arrival of written, rights-based constitutionalism signaled a moment of regression rather than an advancement in women’s political entitlements. In many European jurisdictions, the modern legal order deprived women of the suffrage rights they had enjoyed under the political institutions of the ancien régime, where feudal notions of status or property ownership had allowed for a limited recognition of political rights – usually restricted to municipal or provincial elections – to some noble and taxpaying women.Footnote 5 Starting in the early nineteenth century, women were also denied independent and equal citizenship by legislation that made their nationality dependent on their husbands.Footnote 6 Sometimes, these regressions required the explicit underscoring that the gender-neutral formulation of the new concept of citizenship in fact only encompassed men. This was so despite women’s undeniable involvement in the revolutionary struggles of the time on both sides of the Atlantic.Footnote 7

Women’s disenfranchisement was not a minor issue or an easy one to overcome. In the United States, women were first granted suffrage in the state of Wyoming in 1890, when it joined the federation, and only achieved suffrage at a federal level in 1920 through constitutional reform embodied in the Nineteenth Amendment, whereas French women had to wait until 1944 after World War II to become politically entitled. If political equality was hard to conquer even in the Western world, full equality in rights was even harder: it took over a century and a half since the dawn of revolutionary constitutionalism to kick-start the process of overruling head-and-master laws that rendered women legal minors within the household and fully affirming women’s equal civil status. Only in the 1960s and 1970s, under the influence of second-wave feminism’s challenge to the patriarchal household-state model, did this process, which is still ongoing in many parts of the world, begin in the countries that are widely considered the cradle of constitutionalism.

None of this is truly surprising, however, if we bear in mind that sex inequality was central to both the liberal and the republican traditions of citizenship that modern constitutionalism inherited. In the modern republican tradition, with its roots in antiquity, citizens were expected to contribute to the common good, although this meant different things for men and women. While men were expected to focus on soldiering and government, inhabiting the realm of human freedom, women were to channel their contribution through motherhood, guarding the republican virtues and morals in the so-called private sphere.Footnote 8 Yet women did not fare much better under the liberal tradition, since in the bourgeois societies in which the liberal discourse of universal freedoms and rights flourished, subjects and rights holders were only those endowed with property (including that of the self), those who could sustain themselves – those who, in other words, were subjected to no one. Certainly, these could only be some men and not women, who were typically denied full property rights. Slave men and women were literally owned by their masters as part of the household property; most “free” women depended on their husbands,Footnote 9 and all women were said to be destined to taking care of others. In short, both republicanism and liberalism constructed the myth of the independence and self-sufficiency of free, propertied men by relegating women to their private sphere, a sphere in which they would devote themselves to the task of human and social reproduction, enjoying a legal status that, in many ways, brought them closer to property than to a status of property holders.Footnote 10

Unlike slaves and other racialized persons, women were not denied full humanity during revolutionary times, but the new constitutions were often silent about their political status. Thus, an obvious question comes to mind to anyone trained to admire the enlightened and liberal philosophical seeds on which the modern order was built: how could women’s subjection be reconciled with the egalitarian promise that was foundational to modern constitutionalism? The institution of the marital family, based on the marital contract and central to the household-based political order, holds the answer. In modern times, the order of status was to be replaced by one based on contract, and marriage was to embody a woman’s consent to her place in both society and the political community, hence shaping her distinctive form of modern citizenship. Understanding this requires us to take a look at the transformation of marriage as an institution in the revolutionary period and in modern times.

1.2 The Enlightened Marital Contract and the Modern State

In her fascinating account of the history of marriage (Marriage, a History: How Love Conquered Marriage) on which I draw in this book to describe the evolution of the institution of marriage, historian Stephanie Coontz explains the profound changes to marriage brought about by the spread of the market economy and the advent of the Enlightenment. From being a system of political and economic alliances in its first five thousand years of existence, during the eighteenth century, the institution of marriage came to be seen as a private relationship between two individuals.Footnote 11 For the very first time in history, people came to be expected to marry freely for love and companionship. Behind this evolution, Coontz explains, lie a series of political, economic, and cultural changes that, from their inception in Europe in the seventeenth century, began to erode the older functions of marriage. Only in the late eighteenth century, and then only in Western Europe and North America, did the notion of free choice and marriage for love succeed as a cultural idea. Among the economic and political preconditions that made what she calls the “marriage revolution” possible, Coontz underlines the spread of wage labor in the growing market economy and a new industrialist social order. It was this increase in wage labor that made newlywed couples less dependent on their parents and, in turn, facilitated the historical transformation of the household into a nuclear family, where husband and wife were seen as complementing each other.Footnote 12 The husband, once the overseer of the family labor force, gradually came to be seen as the person who inhabited the public sphere and who, by himself, had to provide for the family through income that was generated outside the household. The wife, once a companion in the farming economy, became instead the source of emotional, moral, and physical nurturing for both the husband and the progeny and was relegated to the private sphere. This is how, during the nineteenth century, most Europeans and Americans came to accept a new view of husbands as providers and wives as caretaking homebodies, entrusting the husband with a duty to protect her and grating him an entitlement to control her and her autonomy. It is interesting to note that this ideal, to which we shall return further on, could not be achieved by a majority of families in the mid-twentieth century, and even then, it was mostly white families who did. This model ignored the ways in which racial patriarchy – expressed through slavery, expropriation, and confinement of indigenous peoples, colonized populations, and otherwise marginalized racial minorities – created a public sphere as a “white male creation.”Footnote 13 The model also implied the existence of a stable marital relationship and the possibility of surviving on the earnings of a single breadwinner, thus giving way to the advent of the family wage that many failed to achieve. However elusive, though, this culturally hegemonic model was exported abroad, forcing poor, single white women and nonwhite men and women to live under its shadow.Footnote 14

The freedoms afforded by the market economy had their parallel in new political and philosophical ideas, and these, too, had an impact on the deep alteration of the marital institution. Political absolutism had sustained the idea of the family as a miniature monarchy until the late seventeenth century and made the husband king over his dependents.Footnote 15 The new political ideals stoked by the Glorious Revolution in England in 1688, and the even more ambitious revolutions in America and France at the end of the eighteenth century, came to question the traditional and classic defense of patriarchal authority.Footnote 16 Eighteenth-century Enlightenment thinkers defended the notion of individual rights and insisted that social relationships, including those between men and women, be organized “on the basis of consent, rather than force, and on transactions rather than in-born status.”Footnote 17 Thus, “consent-based” marriage as contract replaced the natural subjection of women to their husbands and became the legitimating instrument of the new family order.

This, however, did not automatically entail the overcoming of sex inequality, which was said to be grounded in nature. Only a small minority of female and male thinkers in both Europe and America, including Olympe de Gouges, the marquis de Condorcet, and Mary Wollstonecraft, went so far as to call for complete equality within marriage. Most enlightened thinkers simultaneously defended the ideas of universal freedom and equality, as well as the subordinate position of women. It was the contractual fiction of free and consent-based marriage that allowed the notions of hierarchy and community, which the modern project was supposed to replace, to go unchallenged when it came to women. Love gradually displaced obedience as the dominant narrative to support the need for an identity of interests ensuring family unity, whereas in fact it gave cover, under the pretense of family privacy, to the most abusive forms of subordination of women, including through the use of violence.Footnote 18 Since these enlightened thinkers provided the philosophical underpinnings of modern constitutionalism, it is worth pausing to reflect on their vision of the place of women in the new social and political order.

Take John Locke, for instance. In the late seventeenth century, Locke had argued that governmental authority was simply a contract between ruler and ruled. It followed that, if a ruler exceeded the authority his subjects granted him, he could be replaced. Under the same logic, he suggested that marriage, too, could be seen as a contract between equals.Footnote 19 Yet he still believed that men would normally rule their families because of their greater strength and ability, which he took to be indisputable natural facts. This idea that physical differences between the sexes should be reflected in a distinct legal status for men and women – and, essentially, in women’s subordination to men – was a thought that later contractarian and enlightened authors would also share and that seems to represent a concession to nature in tension with the notion that any form of political subordination needed to find its ultimate justification in human-made arrangements. In fact, a paradigmatic expression of this understanding of women as naturally dependent and subjugated to men can be found in Jean-Jacques Rousseau’s writings, which, by contrast, also reflect his perception of men as independent beings. Like Locke, Rousseau based his theory on the different natures of men and women. For Rousseau, men are naturally free, whereas women are made to please men and be subjugated by them, including by being trained to endure a certain amount of violence as would be needed to domesticate them and have them abandon the temptation to ever situate themselves above men.Footnote 20 This is because nature has made one sex stronger and another one weaker, which explains why only men have a natural inclination to be free and why justice, reason, and the public arena are the exclusive territory of men.Footnote 21 Women, Rousseau claimed, lacking theoretical intelligence and being rather endowed with practical reason, chastity, modesty, sweetness, wit, and beauty, are to remain away from the public sphere and put their virtues at the service of the private, domestic realm.Footnote 22 These thoughts provided ammunition to politicians of the time. In the words of Rousseau’s fellow citizen and prime minister, Charles-Maurice de Talleyrand, “The delicate constitution of women, their peaceful inclinations, the numerous duties of maternity, constantly estrange them from public concerns. … Let us teach women that the less they participate in law-making, the greater the protection and strength they will derive from the law.Footnote 23

In accounting for how egalitarian contractualism could justify women’s ongoing subjection to men, Carole Pateman’s seminal book, The Sexual Contract,Footnote 24 on which I rely, brilliantly describes that the answer lies precisely in the construction of the separate spheres on which the modern project was grounded since its inception.Footnote 25 Pateman examines how the embedding of a sexual contract within modernity, supplementary to the social contract, was a step to simultaneously affirm and overcome women’s characteristic order of status in premodern times. In other words, the marriage contract allowed the subjection of wives to be both theoretically rejected and practically entrenched in the new political system. The replacement of an order of status by one of contract defined modernity. In the new modern imaginary, Pateman explains, contract is what allows the individual to believe that their relations with others are based on freedom and equality instead of natural subjection and hierarchy. Contract is also what men use in the public sphere, be it civil society or the public arena, when interacting with other equals. At the same time, modernity conceptualized this contractarian male individual, and hence the modern citizen, on the basis of an implicit subordination of women naturally deemed unfit for the public realm. Because the idea of human equality – the very essence of the new social and political order – could not be entirely compromised, this fiction-based “sexual contract,” embodied in the marital institution, was paramount.

Marriage allowed women to “contract into,” and thus “consent to,” an institution that sealed patriarchy, affirming their obedience to men. The upshot of this is that women’s incorporation into civil society in the modern political order became a gender-specific one: women were incorporated as women, and not simply as persons, as are the parties to the original social contract, meaning that they were added as natural subordinates to men through a pact of protection/subordination.Footnote 26 The incorporation of women through the sexual contract, therefore, enabled the affirmation of the public spheres of market and state to be crafted as quintessentially male domains of interpersonal liberty, equality, and fraternity.

At the same time, a growing body of literature has explored how the social contract was built on a sexual contract (which in theory regarded women as equal and complementary to men) but also on a racial contract that regarded people of color (whether Native American and Australian “savages,” African slaves, or colonial peoples in European empires) as “subpersons,”Footnote 27 as less than equal and not so worthy to be included as free individuals in the white polity, and hence as noncitizens or at best second-class citizens in racialized, patriarchal, and imperial sociopolitical structures.Footnote 28 And although the racial contract in many ways trumped the marital contract, taken to paradigmatically define the relations between the sexes along the public/private division, “human reproduction, sex and anti-miscegenation” were also at the heart of the racial contract in ways that shaped the sexual and reproductive appropriation of nonwhite women. In other words, the social, sexual, and racial contracts reinforced each other in the household-based polities of patriarchal, racial, and imperial states.Footnote 29

Despite some variations around the specific understanding of the marriage contract, not only contract theorists but also modern philosophers in general came to embrace the separate spheres tradition, defining distinct places for men and women in society and in relation to the state, thus shaping women’s specific citizenship in the sense of belonging or contributing to the community. The dispute over the proper understanding of the marriage contract between Immanuel Kant and Georg Hegel, beautifully portrayed in Pateman’s book, is particularly interesting because it reflects the dominance of the contract logic but also the witty efforts to make it compatible with the modern understanding of romantic marriage. For Kant, Pateman explains, marriage was the “Union of two Persons of different sex for life-long reciprocal possession of the sexual faculties,”Footnote 30 a vision that, by the way, is not radically different from Locke’s own views on the marriage contract, “consist[ing] chiefly in the spouses’ Communion and Right in one another’s Bodies.”Footnote 31 Kant also argues that women have no civil personalityFootnote 32 and must, therefore, be kept away from the state and subject to their husbands – their masters – in marriage. Kant sees no contradiction in affirming women’s lack of civil personality and, at the same time, their capacity to enter marriageFootnote 33 because for him the marriage contract is sui generis: in the marriage contract, an individual acquires a right to a person – or, more exactly, as Kant states, revealing his bias, “the Man acquires a Wife”Footnote 34 – who thus becomes a thing, a commodity, or a piece of property. But, because both parties become things (back to a neutral framing!) and each is the possession of the other, they both regain their standing as rational personalities and make use of each other as persons, not property,Footnote 35 whereby the mutual use of sexual desire implies disposing over the person as a whole, including “the welfare and happiness and generally over all the circumstances of that person.Footnote 36

Hegel would later rebel against Kant’s conception of the marriage contract as one for reciprocal use,Footnote 37 claiming that this represented a degraded understanding of marriage. Instead, marriage was to be seen as a distinct form of ethical life, nothing less than a “contract to transcend the standpoint of contract.”Footnote 38 For Hegel, the end of marriage was not mutual sexual use. Rather, being at the origin of the family, the marriage contract created a substantive relation constituted by “love, trust, and common sharing of their entire existence as individuals”Footnote 39 and represented a breeding laboratory of citizenship and the necessary private foundation for public life.Footnote 40 In other words, the marital family signified a space for the formation of human consciousness in which children learned and adults were continually reminded of what it means to be a member of a small association based on love and trust, something they needed to be adequately prepared for to participate in the universal public sphere of civil society and the state.Footnote 41

Notice that, in spite of this significant disagreement in their perception of the marriage contract, both Kant and Hegel still considered that it was women’s destiny to remain in the natural private sphere of the family, with sexual difference necessarily entailing a patriarchal division of labor.Footnote 42 This is because, in essence, and not unlike Rousseau, both Kant and Hegel shared a vision of women’s nature as unfit for public, political, or civil reason. Women’s lack of civil personality, alluded to by Kant, would explain why they must be kept away from the state and subject to their husbands – their natural superiors and mastersFootnote 43 – in and through marriage, and women’s capacity to enter the marriage contract would simply represent a concession to his maxim that all human beings have the rational capacity to act according to universal moral principles.Footnote 44 But even Hegel, who criticized both Rousseau’s social contract theory and Kant’s marriage contract, still shared their patriarchal understanding of masculinity and femininity and, therefore, of the public and private division of spheres and labor.Footnote 45 For Hegel, the “difference in the physical characteristics of the two sexes has a rational basis and consequently acquires an intellectual and ethical significance,”Footnote 46 dictating women’s substantive destiny in the family, where they must cultivate family piety as their ethical frame of mind. Lacking in the capacity to submit to “the demands of universality,”Footnote 47 women cannot enter into civil public life and must remain in the natural private sphere of the family.Footnote 48 The husband has the “prerogative to go out and work for the [family’s] living to attend to its needs, and to control and administer its capital.Footnote 49

One century after Rousseau, John Stuart Mill – the liberal thinker who, out of commitment to the principles of liberty and equality, most explicitly and actively rebelled against the subjection of women to men – was still accepting and justifying the separation of spheres as well as the system of gender roles articulated around it. A strong defender of sex equality, Mill had come a long way compared to his enlightened predecessors, and he specifically argued for the reform of existing marriage law, rejecting the conferral of legal power and control by the husband on the person, property, and freedom of action of the wife. And yet, he still saw no contradiction between affirming women’s equality and accepting women’s position as housewives and economic dependents.Footnote 50 Like the classical social contract theorists, Mill also assumed that sexual difference would necessarily lead to a sexual division of labor.Footnote 51 For Mill, the husband, being usually older than his wife, would typically have more authority in decision-making.Footnote 52 As a result, even when women are recognized equal opportunity in education and the “power of earning,” and marriage is reformed in egalitarian terms – as he argued should be the case – a woman, by virtue of becoming a wife, will still choose to remain in the home, protected by her husband, as if that were her “career.” In sum, choice, consent, and contract were still acknowledged to be at the basis of women’s legitimized condition of subjection now that patriarchy could no longer be affirmed as a man’s natural right. This, then, is how the division of roles and women’s subordination to men through the institution of marriage came to be part of the DNA of modern constitutionalism. Concessions to “nature” were thus made to justify both the racial and the sexual contracts that underlay the modern order.

1.3 Women’s Struggle in Revolutionary Constitutionalism and the Birth of Modern Patriarchal Family Law

The philosophically imbued common sense of the time and the dominant notions of femininity built around it explain why, in revolutionary constitutionalism, women’s political disenfranchisement was, for the most part, not constitutionally articulated but simply assumed as the natural order of things on which the new order was built. At the same time, this should not mislead us into thinking that there was no resistance on the side of women against this purportedly natural order of things. Indeed, a vivid debate about women’s rights – unduly silenced in most constitutional law textbooks to date – did take place in those revolutionary times. Unsurprisingly, the debate had the challenging of the marital institution at its core, and calls to reorganize marriage were expressed in academic, political, and popular circles. Women’s participation in governance was also contested.Footnote 53 For women, the idea of distinguishing emancipatory claims pertaining to the so-called private sphere from those affecting the public sphere never made sense, as their lives were too clear a testimony to their intertwined nature and the complexity of the resulting limitations.

The revolutions in America and France inspired calls to vindicate women’s rights and reorganize marriage as part of the same emancipatory agenda.Footnote 54 Mary Wollstonecraft’s Vindication of the Rights of Women, published in England in 1792, would inspire the constitutional campaigns of women for decades to come. A year earlier, in 1791, Olympe de Gouges wrote her Declaration of the Rights of Women and the Female Citizen, claiming that the revolution would only take effect when all women became fully aware of their deplorable condition and of the rights they had lost in society. The declaration replicated the rights granted to men, point by point, now including women, but also added a reference to women’s reproductive autonomy and a postscript, a “Form for a Social Contract between Man and Woman” – essentially, a manifesto of equality in marriage.Footnote 55 Many decades later, Elizabeth Cady Stanton would repeat the exercise by recasting the text of the American Declaration of Independence as a Declaration of Sentiments, adopted at the Seneca Falls Convention in 1848. Convened by Cady Stanton and Lucretia Mott to discuss the social, civil, and religious condition of women, the convention demanded the admission of women to all the rights and privileges that belonged to women as citizens, including the franchise and the legal rights to property.Footnote 56 Although these expressions are the most visible, claims for women’s rights were not limited to the centers of political revolution. Instead, similar demands were also expressed in the 1790s in Germany and Italy.Footnote 57

Despite these feminist expressions of revolutionary fervor, hierarchy and paternalism prevailed in the end, and in a conservative reaction to the revolutions, American and French legislators rolled back on the political freedoms that women and children had gained at the height of revolutionary activity, backing away from far-reaching interpretations of individual rights.Footnote 58 Indeed, in order to suppress women’s claims during the postrevolutionary period, most states passed their first explicit prohibitions on women’s political rights.Footnote 59 In so doing, they evinced the dominant fear that revolutionary agitation for the “rights” of women would ultimately undermine all family ties.Footnote 60 This suggests that, notwithstanding the revolutionary exaltation of the rights of the individual, as opposed to those that were conditioned by group belonging, the heterosexual reproductive family was taken as the foundational societal group, unchallenged in its capacity to shape the status of individual rights and obligations pertaining to the household.Footnote 61 The new democracies were thus better understood as household democracies.

Interestingly, men were not the only ones who feared the possibly destructive effects of women joining the public sphere. This apprehension was also understandably shared by many women who cared not only about family ties but also about the system of dependencies built around it. In the time following the revolution, women worried that, in the context of their actual economic dependence on men, full legal equality would expose them to more risks than secure new opportunities.Footnote 62 Full equal rights without enough opportunities in the marketplace and without men’s involvement in the domain of care were, at the time and would remain throughout the history of women’s constitutionalism, a threatening combination pushing many women – out of pragmatism, if not in principle – to be eager to retain “women’s prerogatives,” especially when seen as protection rather than outright subordination and when referred to those women for whom the household system, because of class and race, entailed a certain degree of protection.

Modern family law, as a separate body of positive law, consolidated precisely during this time.Footnote 63 And it did so in ways that entrenched and regulated women’s hierarchical subordination within the domestic sphere, becoming thus the cornerstone of women’s distinctive citizenship. The French Civil Code, or Code Napoléon, widely praised as the first realization of liberal principles in private law and exported to many other countries in Europe and the French colonies, was adopted in 1804 and embodied the preservation of “the traits of medieval patriarchy the longest and in its purest form.”Footnote 64 The leading rule that “the man owes his wife protection; the wife owes the husband obedience” (article 213) was generally interpreted to mean that, although a wife could formally own property, she was under the legal guardianship of her husband, who also held legal custody over their descendants, including unwed daughters, who were not authorized to abandon the paternal household even after coming of age. Forever a minor according to the code, the wife had to request her husband’s authorization for a number of acts, including being a party to legal proceedings, signing contracts, setting herself up in a profession, doing financial transactions, and joining a political party or trade union. The revolutionary goal of guaranteeing all children, including those born out of wedlock, equal claims on their parents was also abandoned, with Napoleon famously stating that the nation had no interest in recognizing bastards.Footnote 65 This code had a great impact on all countries subjected to the French empire during the Napoleonic Wars, including Belgium and the Netherlands, and left its mark even after those countries or regions gained independence. The cultural impact of French liberalism went beyond its territorial domains and was, for instance, exported to the French colonies and to the colonies of other European countries that, like Spain, had also been affected by it. This would naturally carry repercussions on Latin America.Footnote 66

However, the Code Napoléon was not an exception. The German Civil Code, in fact, was quite similar. Coming into force in 1900, it reestablished paternal authority and reasserted a husband’s right to decide in “all matters affecting communal life of the couple.”Footnote 67 Moreover, the husband was in principle granted the exclusive right to manage property, including his wife’s, and to intervene and even end his wife’s employment contracts.Footnote 68 In English common law, also exported to the British colonies, the so-called coverture doctrine remained the dominant paradigm. As described in William Blackstone’s commentaries on English common law, a marriage license was something like “a certificate of ownership of the wife, entitling the husband to her property, her body and its products, including the labour she engaged in for wages and the labour that produced offsprings; obliging him to provide for her care and feeding; giving him a cause of action against those who injured her or his interests in her; making him responsible for her actions; and giving him the rights to control her.”Footnote 69

In sum, the synthesis of the revolutionary outbreak was a unique middle way between egalitarian and patriarchal views of marriage whereby people came to view each sex as having a distinctive and complementary role, based on an underlying racialized power structure that trumped the sexual contract built around marriage. Leaving aside the few male and female “radicals” who, consistent with the logic of the Enlightenment, defended the idea that men and women should have the same rights, most people accepted the general view that the family should remain the main domain of women’s activity, a sphere attached with a unique moral quality that had to be “protected from contamination by involvement in men’s mundane spheres of activity.”Footnote 70 A family exceptionalism, so to speak, was built into the constitutional project since its very inception, carving out what in federal terms we could visualize as a space of white male supremacy and governance. It is within this space where appeals to the law of nature (and men and women’s distinct biology) still dictated the norms, with slavery, in some instances, and the artifact of contract and consent, in others, legitimating various degrees and forms of exploitation of women’s productive and reproductive labor – a labor that would sustain the new market economy – and a new legal discipline, family law, providing the relevant legal architecture.

1.4 The Constitutional Embedding of the Breadwinner Family Order

Throughout the nineteenth century and the first half of the twentieth century, the male breadwinner heterosexual marriage only gained cultural hegemony in Europe and North America even though it continued to represent an unachievable ideal for many. As wage-earning work and commerce gradually moved out of the household and into separate work sites, the division between a husband’s wage-earning activities and a wife’s household activities grew, as did the sense that women and men lived in separate spheres: women overseeing that of domesticity and men that of the economy and governance.Footnote 71 Removed from the sphere of the cash economy, women homemakers were doomed to financial dependence on their husbands. Culturally, the home became the sanctuary in which women could be protected from “the turmoil and contamination of economic and political life” and men could escape the “materialistic preoccupations of their daily workday.”Footnote 72

Many women, whose mothers had embraced the revolutionary feminist demands of the 1790s, abandoned earlier calls for equality and fully advocated the doctrine of separate spheres for men and women.Footnote 73 As a result, by the middle of the nineteenth century, there was a growing consensus throughout Western Europe and North America that the love-based marriage, in which the wife stayed at home protected and supported by her husband, was the path to happiness. In real life, this ideal was still difficult to achieve, especially for lower-class wives and, in the United States, African American women. Since the beginning, the male breadwinner/female homemaker family model for the middle and upper classes had rested on the existence of large sections of the lower class who could not live up to itFootnote 74 and for whom the growing cultural hegemony of femininity notions defined around this model entailed dignitary and material forms of harm. At the same time, the duality between productive and reproductive work was established, and women’s labor and productive tasks within the household were culturally transformed into acts of “homemaking” and expressions of “love” rather than work. In the world of cash transactions, women’s care labor became increasingly undervalued.Footnote 75 To the extent that women were still expected to perform a role in the public world, this would occur either as an extension of their caretaking duties to the wider, and typically local, community (as in their involvement in poverty relief programs) or through the influence they could have on their husbands and children.Footnote 76

This social and political gender order found some constitutional manifestations both in the Old and the New Worlds. However, most of the revolutionary constitutional texts remained silent about women, the family, or the gender order articulated around it. This is not surprising, considering the emphasis placed during the revolutionary period on foregrounding the individual and breaking away from the ancien régime’s privileging of intermediate bodies. Some revolutionary constitutions, though, contained indirect traces of the dominant gender order that affected not only women but also all those destined to domestic chores. Spain’s first constitution in the revolutionary period, that of 1812, for instance, included a clause (article 25) providing that men devoted to the domestic service should have their privileges of citizenship suspended.Footnote 77 The more commonly shared silence around the family and the underlying gender order was instead a reflection of the “normalization,” “naturalization,” or “depolitization” of the marital family–based political order. Still, despite the silence of the early constitutional texts, there is no doubt that the heteronormative procreative family as a foundational unit of society was the hegemonic construct built into sex-silent texts during the first constitutionalism. In this family-based political order, “state law looked to the head of household to govern and represent his legal dependents, not only children, but adults affiliated through institutions including slavery, employment and marriage” (slaves, servants, and wives).Footnote 78

Because of its historical continuity and the permanence of its text, the United States Constitution, and American constitutionalism in particular, offers a wonderful vantage point from which to observe the gendered construction of this new political and economic order as well as of the central role of marriage and the traditional family, especially in the latter’s articulation as a natural repository of care and human interdependence. In its original text, dating back to 1787, the US Constitution did not contain any reference to family or marriage. Yet the direct link between the construction of the family organization and marriage, on the one hand, and the exclusion of women from the public sphere, on the other – interpreted as including both the market and the domain of civic and political rights and duties – can be confirmed through the gendered subtexts present in many of the Supreme Court’s decisions. In 1872, Justice Bradley, concurring in the denial of the right to practice law to women in general, focused on the petitioner’s status as a married woman and bluntly stated this now infamous opinion that simply reflected the order of the day:

The constitution of the family organization, which is founded in the divine ordinance, as well as in the nature of things, indicates the domestic sphere as that which properly belongs to the domain and functions of womanhood. The harmony, not to say identity, of interests and views which belong, or should belong, to the family institution is repugnant to the idea of a woman adopting a distinct and independent career from that of her husband. … It is true that many women are unmarried and not affected by any of the duties, complications, and incapacities arising out of the married state, but these are exceptions to the general rule. The paramount destiny and mission of woman are to fulfil the noble and benign offices of wife and mother. This is the law of the Creator. And the rules of civil society must be adapted to the general constitution of things, and cannot be based upon exceptional cases.

(Bradwell v. Illinois, 83 U.S. 130, 141–42 [1872])

Just a few years after deciding Bradwell in 1873, a case on polygamy gave the Supreme Court the opportunity to explicitly recognize the centrality of marriage, not only as the foundational relationship for the nuclear family but also as the very basis of society itself in “civilized nations,” in a language that plainly gives visibility to the racial undertones of the sexual contract. In Justice Waite’s words, “Marriage, while from its very nature a sacred obligation, is nevertheless, in most civilized nations, a civil contract, and usually regulated by law. Upon it society may be said to be built, and out of its fruits spring social relations and social obligations and duties with which government is necessarily required to deal.”Footnote 79 Over thirty years later, in 1908, by upholding a state law limiting women’s work hours (meaning only those outside the home, of course!), the Supreme Court would still insist that “a proper discharge of [a woman’s] maternal functions – having in view not merely her own health, but the wellbeing of the race – justif[ies] legislation to protect her from the greed, as well as the passion, of man.Footnote 80

1.5 First-Wave Feminism and Women’s Constitutional Engagements

Despite their constitutional erasure and political disenfranchisement, by the mid-nineteenth century, women were organizing, often in clubs and associations, around a growing feminist conscience to react against their constitutional silencing and their political disenfranchisement,Footnote 81 but also against the oppressive and often violent family structure that they understood to be the backbone of their subordination. They did so in a global movement known as first-wave feminism (even though those recognizing the attempts of women in the early revolutionary times might disagree with this label). The turn of the century would finally see women’s first important victories materialize in constitutional law.

The struggles for transformation were many and more or less peaceful in nature and certainly limited if we take the position of racialized women into account, with the women’s movement between the 1870s and 1920s largely segregated.Footnote 82 As regards the realm of constitutionalism and the various fights to turn emancipatory ideals into a constitutional reality, women relied both on the constitutional interpretation of sex-silent texts as well as on attempts to bring about new constitutional norms. In all instances, women never limited themselves to a women’s rights agenda, though this was certainly a key part of their demands. Rather, women sought to advance their broader views on what constituted a just society, a vision undeniably shaped by their experiences as women. Because these experiences were in fact different for different women, in their various struggles, women faced the obstacle of speaking with one voice, not only because of the natural difficulty of setting a priority order between the competing emancipatory causes of the time, or their different positionalities, but also, once again, because of the natural fear for the costs that a process of gender roles disestablishment could entail for women themselves, especially for those who were both subordinated and comparatively privileged by it. Tellingly, however, in crafting their demands, most women challenged the idea of the family as a natural order free from the demands or aspirations of justice. Instead, women typically identified abuse and exploitation wherever they encountered it in their own lives, including, and often beginning, in the domestic sphere, whether in their own or in that of others.

The fight for women’s suffrage has come to epitomize women’s mobilization and transnational coalition-building during the nineteenth century, but this struggle was not always fought for with constitutional tools (even though it did have an explicit constitutional dimension in several countries). The fact is that women were engaged in various other constitutional causes that concerned their own status in the political community as well as in other causes of public interest they thought worth pursuing.

In the nineteenth-century United States, for instance, many women were active abolitionists who drew analogies between their experiences of domestic servitude and the enforced servitude of slavery and underlined the dual exploitation of slave women, who were exploited for their labor and also subjected to sexual abuse by their masters. In this sense, it has been said that women were both in large part “the agents and the subjects of the Thirteenth Amendment to the US Constitution,” which was ratified at the close of the Civil War in 1865 and prohibited slavery.Footnote 83 Also, in 1873, the Women’s Christian Temperance Union was established with the aim of prohibiting and politicizing family abandonment, domestic violence, and sexual abuse, which at the time were primarily attributed to the consumption of alcohol by unruly husbands. The US Supreme Court’s interpretation of the commerce clause had been contrary to the goal of prohibition, and therefore an amendment was successfully sought in 1919 with the ratification of the Eighteenth Amendment, allowing federal powers to mandate prohibition at a national level. This decision, however, would be reversed through the Twenty-First Amendment in 1933, when it became clear that the amendment had not succeeded in its initial goal, thus returning control to state jurisdiction. And in 1920, the Nineteenth Amendment to the US Constitution was finally passed, an achievement that ratified the enfranchisement of women.

In Australia, the scenario was different. Women’s involvement in the constitutional process during the 1890s, which would lead to the adoption of the country’s constitution in 1900, had already centered on securing women’s franchise (recognized already in two colonies at the time of drafting), with women’s suffrage leagues proving incredibly active. Yet the Woman’s Christian Temperance Union also played a leading role in another early constitutional cause, whereby women sought to ensure that the prohibition of the sale and trade of liquor, which they hoped would help overcome domestic violence and abandonment, remained within state jurisdiction.Footnote 84

Participation in constitution-making and reform was not, however, the only early expression of constitutional engagement by and for women at the time. In several countries, court litigation and constitutional interpretation to ensure women’s inclusion were tried first. In the United States, the adoption of the Fourteenth Amendment in 1868, whose historical purpose was to force former slave states to recognize the legal citizenship of emancipated slaves, seemed to open a window of opportunities for women when it recognized citizenship to “all persons born or naturalized in the United States and subject to the jurisdiction thereof,” compelling states not to make or enforce any law that should “abridge the privileges or immunities of citizens of the United States.” This new provision prompted people like Myra Bradwell to approach the Supreme Court to claim equal privilege as a US citizen and the ability to earn a livelihood by obtaining a license to practice as a lawyer, only to be told by the court that the privileges referred to did not include her claim and be subsequently sent home to do a woman’s work.Footnote 85

There were several attempts at accessing voting rights through constitutional litigation and interpretation, taking advantage of the fact that women’s political disenfranchisement was often (though not always)Footnote 86 not explicitly articulated in the constitutions of the time. These attempts would not achieve positive outcomes, however. For instance, a systematic approach to constitutional interpretation was unsuccessfully tried by Susan B. Anthony in 1872 in the context of her trial for the federal crime of voting without the right to vote, only to find that such interpretation did not support her claim to be granted suffrage as a “citizen privilege” because the Fifteenth Amendment, ratified in 1870, had not listed gender or sex (only race, color, or previous condition of servitude) among the prohibited grounds for denying the right to vote.Footnote 87 Likewise – and to the horror of many women suffragists, at least of those who had also fought for abolition – section 2 of the Fourteenth Amendment (adopted only two years before and reducing the number of members of the House of Representatives to which a state was entitled if it disenfranchised any male inhabitant of such state) introduced for the first time the word “male” into the constitution, linking it to the franchise and thus rendering explicit what had so far remained an implicit provision; that is, that the constitution only covered male suffrage.Footnote 88 In spite of this, in 1874, Virginia Minor, a leader of the women’s suffrage movement who had failed to register to vote in Missouri elections, unsuccessfully tried her constitutional luck under the Fourteenth Amendment’s Privileges and Immunities Clause.Footnote 89 Little did she know that Maria Montessori, the famous Italian pedagogue,Footnote 90 or Julieta Lanteri,Footnote 91 one of Argentina’s feminist pioneers, would years later also unsuccessfully try theirs, only to find the constitutional doors in their countries still equally shut to their suffragist demands.

1.6 The Struggle for Women’s Suffrage and the Separate Spheres Tradition

Soon enough, it became obvious that, in those settings in which creative constitutional interpretation would not open the door to women’s political enfranchisement, the only conducive way was to turn to law reform, constitutional or otherwise. In the United States, a campaign began for what was hoped would be the Sixteenth Amendment, recognizing that the right of citizens to vote should not be abridged by the nation or by any state on account of sex. Although the proposal was first introduced in Congress in 1878, more than forty years were to pass before it succeeded with the ratification of the Nineteenth Amendment in 1920. Notice that this achievement came after women had already gained suffrage on equal terms with men and in many other parts of the world through nonconstitutional means:Footnote 92 Australia (1902), Finland (1905), Norway (1907), and Canada (1918). Because at the time none of these countries had a bill of rights that could be interpreted to entrench women’s exclusion from the public sphere, constitutional amendment was unnecessary and legal reform sufficient. As a matter of fact, two colonies in Australia (South Australia and Western Australia) had already enfranchised women before the country’s constitution was finally adopted in 1900, and this created an opening for women’s involvement in the constitutional process, even in colonies where they still lacked the right to vote.Footnote 93 Although the suffragists’ lobbying efforts did not succeed in guaranteeing women’s suffrage in federal elections, a provision (section 41) was included in the constitution whereby women who were already entitled to vote in their colonies would be ensured the right to vote in federal elections. This then created pressure for women’s enfranchisement in the other colonies and resulted in the granting of female suffrage in 1902 in the first federal Franchise Act.Footnote 94 This story, as many others that we will recount, seems to suggest that, where it was affirmed, rights-based constitutionalism could be more of an obstacle than a facilitator of the assertion of women’s equality. Why? Because it implicitly entrenched a male-dominated family order.

Whether fought for through constitutional means or otherwise, women’s access to suffrage had an undeniable constitutional dimension. It was fought for and won on the basis of a new conscience of women as political actors, exasperated by the relatively little importance attached to the cause by traditional political parties and even by women’s bourgeois associations. Suffragist organizations, proliferating at the turn of the century, took the lead through a movement with international ambitions, which consolidated with the formation of the International Women Suffrage Association between 1899 and 1902, recruiting women from all walks of life and challenging dominant definitions of womanhood articulated around domesticity.Footnote 95 Women’s access to voting rights also came to define, in each country, the “consenting” body that would henceforth be entitled to participate in constitution-making or reform. More importantly, women had a difficult time claiming their equal stature as regards the enjoyment of all other rights and freedoms constitutionally enshrined for as long as the right to political participation was formally denied to them. In essence, both symbolically and practically, the denial of women’s suffrage represented the confirmation of the gender order that the constitutions were built on – namely, one entrenching the separate spheres ideology and women’s motherhood-citizenship. No surprise, then, that in the struggle for women’s franchise the arguments used for and against suffrage, including those by women who mobilized against it, were all reflective of the dominance of the separate spheres both as a reality and, just as importantly, as an ideological construct.

Clearly, there were many reasons why women faced the challenge of speaking with one voice in the struggle for suffrage. Divisions along class lines (with bourgeois women leading the feminist movement in most countries, sometimes fearing suffrage would be granted to insufficiently educated women) and political lines (with progressive forces sometimes claiming that women would vote more conservative under the influence of tradition and religion, and conservative forces making strategic considerations along similar lines) entrenched the conflict, although there were also divisions along ethnocultural and racial lines.Footnote 96 Nationalist struggles of various kinds also got in the way of women on both sides of the Atlantic. In the complex social and political context of Habsburg Austria, for instance, ethnic and nationalistic loyalties impeded a united suffrage movement. And much the same happened in Switzerland, where cultural differences and language barriers between the different regions made a unified effort difficult to achieve. The language question also caused a division within the Finnish Women’s Association. And in Ireland, membership in suffrage societies was depleted by defections to newly formed female nationalist or unionist organizations. In the United States, the National Woman Suffrage Association broke with the abolition tradition, advocating women’s rights first and foremost, as they opposed the ratification of the Fifteenth Amendment, whereas the more moderate American Woman Suffrage Association maintained its alliance with the old abolition cause throughout.Footnote 97

Yet, both in Europe and America, women’s disagreement also revolved around the possible effects that granting women the right to suffrage might have on the traditional family.Footnote 98 Conservative forces in particular considered female suffrage to be politically contentious because it could erode family harmony and generate social instability. Antisuffragists stressed that women were especially suited and exclusively destined for the work of family maintenance. Lacking the capacity for managing public affairs, suffrage rights would simply distract women from their obligations as wives and mothers.Footnote 99 Instead, women were to be represented by men as the heads of the family household. Two contradictory arguments were thus lumped together – namely, that women’s suffrage was unnecessary, because a unity of interests (which the male head of household could defend) was presumed, and that it could disrupt family harmony in case of a clash of interests, making the subordination of women the only solution.Footnote 100 In Sweden, for instance, a parliamentary commission was formed and put in charge of investigating the potential consequences of female suffrage on birth rates and marriage. And, in the United Kingdom, one of the arguments that liberal Prime Minister William Gladstone held in stubborn resistance to female suffrage was that women could be potentially corrupted by politics and thereby threaten the family.Footnote 101 In fact, it was also in Britain that the National League for Opposing Women’s Suffrage was founded in 1910.

At stake was not just ideology but a reasonable concern. After all, the separate spheres tradition held out the promise of economic subsistence for a subset of women and a defined social place as a wife to women from “all respectable classes.” True, women’s economic opportunities had improved by the end of the nineteenth century, but they were still very limited. In this context, working-class women, and not only middle-upper class women, had reasons to fear, for they would have to compete economically against men, as antisuffragists claimed they would be compelled to do if the sexed order of society came to be challenged and the system of subsidiary protections for women in the incipient welfare state were entirely dismantled in the name of full equality.Footnote 102 “Middle-class husbands could offer their wives a more comfortable existence than spinsters could provide for themselves.”Footnote 103

While some feared that women’s suffrage would disrupt family life, the argument that, as mothers and providers of care, women were unsuited for political concerns was sometimes turned on its head.Footnote 104 Not only did suffragists draw on the examples of Australia and New Zealand to show that female suffrage had not led to a neglect of homes and families, but they also sustained that, on the contrary, motherhood made for good and caring citizens particularly suited to act in local politics.Footnote 105 It was argued that the nation would benefit if women’s natural inclinations to care were put to public service, especially at a time when the legislative concern with social welfare was increasing. If women were included in the public sphere, they would stand for patriotic motherhood. The enfranchisement of women thus came to be defended as a means of “social housekeeping,” giving women a say in the regulation of municipal services and in the industrial conditions that they and their children had to endure.Footnote 106

These were not just conservative or male voices, or both. Many women and activists shared the view that men’s and women’s contributions to the nation were of a different kind. In other words, there was a key dividing line between egalitarians and “maternalists” among those fighting for suffrage. Egalitarians relied on considerations of justice, calling on the universal language of individual freedom and equality. They also underscored the fact that what prevented women from participating in the public world was not nature itself but men’s monopoly on education, training, paid employment, and suffrage. Maternalists, on the other hand, based their claims on the particular role and different needs of women, emphasizing maternal values and women’s caring approach to life, which, they said, could and should be used to advance the national interest. There were also divisions in regard to the relevance of women’s suffrage for the subversion of the separate spheres tradition. Many middle-class and working-class suffragists linked the vote to women’s economic independence, regarding it as a way to improve their conditions and their positions as workers in male-dominated workplaces. However, for other suffragists, including those who were recruited from the women’s temperance movement, suffrage was vital to strengthen the position of women in private life and eliminate men’s domestic tyranny. It seems that, in the end, pro-suffrage voices often managed to successfully combine several types of arguments in making their case, some affirming and some subverting the separate spheres ideology.

Compelling and important as the campaign for women’s suffrage was, it would not be the only effort for women’s full political membership. The campaign to acquire, retain, and transmit citizenship/nationality in their own right and on equal terms to men was also waged for decades. Delayed for almost a hundred years, independent and equal constitutional citizenship was denied to women in most countries until well into the twentieth century, in some cases, even after World War II. And like the suffrage campaign, it also concerned the recognition of women as independent and autonomous members of a nation state in their own right, as lack of nationality entailed deprivation of equal political rights and residential security, something that epitomized the lack of recognition of the full membership in one’s constitutional community.Footnote 107 In fact, women’s suffrage organizations were expanded to incorporate the goal of citizenship equality. The fact that the practice of tying women’s nationality to that of their husbands was supported by the international community and defended on the need to ensure family unity comes as no surprise.Footnote 108

1.7 Sex Equality Enters Constitutionalism and So Does Motherhood and the Protection of the Family

Given the preponderance of the gender order on which modernity was built, it is not surprising that the conquest of female suffrage, even in those cases in which it was clearly enshrined in the constitution, did not automatically lead to an overall reinterpretation of the text nor was it able to dismantle the many legal distinctions between men and women on which the dominant ideologies around the breadwinner family model were based. In fact, just as women’s attempt to use the Fourteenth Amendment’s Equal Protection Clause to rule out sex-based privileges had systematically failed in the United States, so did their attempts to rely on the Citizenship Clause of the same amendment to challenge conditional marital nationality lawsFootnote 109 and to use the newly conquered Nineteenth Amendment as a broader litigating tool to claim access to other domains of citizenship, including citizenship duties such as jury service in front of state courts.Footnote 110 Suffrage was conquered, but first-wave feminism had not yet defeated the paramount family model and the political order based on it. Thus, with the single exception of short-lived and unsuccessful attempts to impose special occupational safety and hour regulations on establishments employing women (which, in the time of the economic laissez-faire heyday of the Lochner era,Footnote 111 were seen as unduly infringing against liberty of contract), the expansive reading of the revolutionary changes embodied in the Nineteenth Amendment’s suffrage clause was systematically unsuccessful, despite some of the Supreme Court’s more celebratory rhetoric.Footnote 112 In fact, as we shall see, this dominant family model and the social order built around it were some of the main reasons behind the failure of the US Constitution to incorporate, by way of amendment, a direct ban on sex discrimination, something that was first proposed in 1923 soon after the granting of female suffrage.Footnote 113

If, in the United States, the breadwinner family ideology shaped constitutionalism in spite of the absence of explicit traces in the constitutional text (as the constitution did not include any reference to the family or marriage other than for the purpose of federalism),Footnote 114 in Europe, where, for the most part, democratic constitutionalism failed to establish itself solidly until the second half of the twentieth century – first, against monarchical reactionary forces, and then, against fascist and totalitarian movements – the same ideology shaped and limited women’s citizenship. European enlightenment constitutions had also remained silent about the family and women’s constitutional status, providing at best, general equality clauses with no specific mention to sex.Footnote 115 Contrary to the United States, though, where the original constitutional text has remained valid and amendments have been difficult to achieve, Europe’s tormented constitutional history and the proliferation of constitutional texts that characterized it have allowed for a textual reception of changing understandings regarding women’s status and the ways this status came to be shaped by prevailing conceptions of the family. In several European countries, women’s newly conquered voting rights opened women’s access to constitution-making for the first time during the interwar period. In every site, the number of women present remained token, yet, whenever they could, women used their newly gained powers to ensure a sex equality provision but also, tellingly, to include the protection of motherhood and the family under the constitution. In other words, equality of rights and women’s specific protections as mothers were, from the start, seen not only as complementing but also qualifying each other, given the relatively unchallenged dominant gender ideology.

Germany’s 1919 landmark Weimar Constitution, which governed Germany during the Weimar Republic (1919–1933), provides a good illustration of the coexistence of constitutional sex equality provisions, harvesting the fruits of first-wave feminism, the dominant family ideology, and women’s involvement in constitution-making. Indeed, the forty-one women (i.e., 10 percent) that had been elected thanks to the newly conquered right to vote (first recognized in 1918) participated in the drafting of the Weimar Constitution, which recognized men and women “fundamentally” the same civic rights and duties (under article 109) as well as women’s equal access to the civil service (article 128). The text also contained a clause reflecting the social centrality and political relevance of the family structure in general and of motherhood in particular. Thus, under a chapter devoted to life in community, article 119 recognized that the marital family, based on the equality of both genders, enjoyed the special protection of the constitution and entrusted both the state and the community to protect the welfare of families and mothers.Footnote 116

In the constituent assembly drafting the Weimar Constitution, women from different political parties had disagreed as to whether the protection of motherhood should be limited to cover marital children only (something conservative women saw as necessary to protect the marital family) or should instead encompass unwed mothers and their out-of-wedlock children, a debate with obvious class undertones that the postwar context and the general increase of single-headed households allowed to minimize somewhat.Footnote 117 There was also disagreement about whether the role of motherhood was really compatible with women joining public office. Interestingly, though, the need for motherhood and the family to be protected for the sake of women’s well-being gathered consensus across the board and was key to the German socialist women’s understanding of the constitutional protection that women required.Footnote 118 In other words, the generalized assumption about distinct gender roles, backed by the reality of the time, survived the constitutional recognition of equality, which helps explain why the sex equality provision was qualified with two caveats: the limitation to civic rights and duties and the reference to men and women enjoying “fundamentally” (grundsätzlich) the same rights and duties. Such qualification was especially justified on the basis of men’s distinctive military obligations, despite the fact that, following Germany’s defeat in World War I, the Treaty of Versailles had imposed severe restrictions on the German military, essentially prohibiting compulsory military service.Footnote 119 Tellingly, although the qualifier would be kept in the end, it was deemed unnecessary even by the strongest supporters of the constitutional sex equality provision, since “women were fulfilling similar obligations of citizenship, such as educating and raising children” and this seemed to be uncontroversially accepted by all.Footnote 120

The German Constitution was not an isolated case. Other constitutions of the interwar period, especially constitutions of socialist inspiration and greater expectation of state involvement, also mentioned protections of motherhood and social reproductionFootnote 121 as well as the termination of “sex-based privileges.” This was, for instance, the case of article 25 of the 1931 Constitution of the Second Spanish Republic, which also added the qualifier “fundamentally” when referring to men and women’s equal rights. In some instances, this general cancellation of sex-based privileges came hand in hand with the granting of equal political rights to women for the first time. This was true of the 1931 Spanish Constitution but also of others, including the 1920 Czech Constitution, the 1920 Austrian Constitution, and the 1921 Polish Constitution. Nevertheless, the full abolition of sex-based privileges and distinctions was not a general feature of European interwar constitutionalism, and some countries would go back and forth on the matter. Some constitutional provisions specifically recognized women’s political status as being inferior to men’s (such as article 6 of the 1923 Romanian Constitution), while others simply allowed the legislator to elaborate on the distinctions between men and women that they deemed justified according to “the specific functions” of each (such as article 16.2 of the 1934 Austrian Constitution). In fact, it was rather illusory to proclaim an unqualified equal status as long as the dominant breadwinner family model ideology, and the legal order which articulated it, continued attaching different functions to men and women, with family codes in particular drawing all kinds of distinctions between husband and wife and, in that sense, defining, more than constitutions themselves, the confines of women’s constitutional membership.

An important reason why the family ideology left a clear constitutional imprimatur in Western Europe has to do with the early formation of the welfare state model.Footnote 122 It certainly helps explain the growing preoccupation with the protection of both the institution of the family, to which the social function of care was primarily assigned, and motherhood, as a valued role but also a potentially vulnerable condition (especially in situations of “family failure,” where the figure of the male head of the household was missing). Initial programs of social provision – established across the West in the formative period of the welfare state, approximately from the 1880s to the onset of World War I – were designed to fit and reinforce the family wage system, with men acting as breadwinners and women as primary caretakers, domestic workers, and secondary wage earners. This model of women’s social citizenship, built around a “two-channel” or “patriarchal” welfare state,Footnote 123 entrenched women’s dependent citizenship by retaining them as objects of protection owing to their weak or dependent nature, or else to their roles as mothers and caretakers.Footnote 124 In this light, constitutional references to the dominant family model and to the role of the state in supporting it were not necessarily seen as in contradiction with the abolition of sex-based distinctions or privileges but rather as necessary protections owed to women in their expected roles as caretakers. After all, the system of protections was also, of course, a reflection of the political economy of the time, when women were offered mostly domestic or manufacturing jobs that were extremely poorly paid and that only those in dire need would take, amid rampant job segregation and pay discrimination.Footnote 125

The breadwinner family model was indeed so widely accepted that it conditioned the emancipatory horizon of many forms of activism. Thus, a “maternalist” strand of welfare politics developed in the first half of the twentieth century, proposing full state support to widowed or abandoned mothers. The intended aim was to allow these women in “broken” or “failed families” to stay at home and care for their children. Some reformers went as far as to demand a general “endowment of motherhood” for all mothers, in the belief that this would express a political recognition on the work of mothering and independent income.Footnote 126 Yet, as a matter of fact, this general approach did not succeed, except in a weak form as children’s allowances that most states paid to mothers but that were never sufficient to support a woman without a husband. This is how “maternalist” programs came to be primarily a back-up for the “failures” of the family wage system, and most benefits were restricted to single mothers, usually widows but sometimes also divorced, separated, or unmarried women. Parity between benefits for stay-at-home mothers and benefits for wage earners, as well as a standard of living for single mothers comparable to their married counterparts, remained elusive goals – a reality that was not free of stigmatizing effects on women, often poor and racialized.

It was in this context that many Western European constitutions came to recognize the social centrality of the family structure, making direct reference to the need to attach special protection to motherhood and inaugurating a maternalist tradition in constitutionalism that was then exported to many corners of the world. In fact, some European constitutions of the interwar period were quite thorough in terms of the entrenchment of the breadwinner marital family model, with its distinctive gender roles and its implications with respect to the differentiated expected contributions to the common good. In this regard, perhaps the bluntest example of the period is the 1937 Irish Constitution (replacing the 1922 text and still in force today), which, infused with a politicized Catholic ethos, glorified the sanctity of the family. Article 41, devoted to the family, reads:

(1.1) The State recognises the Family as the natural primary and fundamental unit group of Society, and as a moral institution possessing inalienable and imprescriptible rights, antecedent and superior to all positive law.

(1.2) The State, therefore, guarantees to protect the Family in its constitution and authority, as the necessary basis of social order and as indispensable to the welfare of the Nation and the State.

(2.1) In particular, the State recognises that by her life within the home, woman gives to the State a support without which the common good cannot be achieved.

(2.2) The State shall, therefore, endeavour to ensure that mothers shall not be obliged by economic necessity to engage in labour to the neglect of their duties in the home.

(3.1) The State pledges itself to guard with special care the institution of Marriage, on which the Family is founded, and to protect it against attack.

That this provision could be reconciled with the generically expressed principle of equality, also contained in the Irish Constitution, is better understood if we look at the exact framing of the equality clause (article 40.1), which affirms equality but also recognizes the possibility of legitimate distinctions on the basis of different physical and moral natures or social functions.Footnote 127

In any event, in Europe, the abolition of sex-based privileges through some form of sex equality clause was seen from the start, and to a greater or lesser extent, as compatible with the preservation of the traditional family order. However, the fear that women’s proclaimed constitutional equality might threaten both the established gender order and the system of protections put into place for women as mothers and dependent spouses provoked different results in other contexts. Notably, it contributed to the failure of the Equal Rights Amendment (ERA) in the United States. This amendment, which galvanized efforts of formidable women,Footnote 128 would have recognized that “equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex.” It was first proposed in 1922 – around the same time that equal rights provisions were starting to flourish in European constitutionalism – precisely by those who saw in it a natural sequence after the conquest of suffrage through the Nineteenth Amendment. Yet it took almost fifty years for Congress to finally adopt it in 1972, yielding to the pressure of second-wave feminist activism. Within the following two years, thirty of the required thirty-eight states had ratified it, but thereafter the pace of ratification slowed dramatically and then grounded to a halt. It ultimately faded away in 1982, since proponents were unable to secure the necessary state ratifications despite strenuous advocacy and a three-year extension.Footnote 129

At the time, the ERA’s ultimate failure was the result of conservatism appealing to caution. There were those who saw the amendment (just as suffrage opponents had done in the past) as a threat to the family structure. Their success, though, relied on appealing to those who instead feared the wiping out of special protections for women workers or dependent spouses in the context of a labor market in which women could still not be expected to compete on equal terms. In her narrative, Phyllis Schlafly, the strongest anti-ERA advocate, uplifted the role of motherhood to that of “home executive,” arguing that marriage and motherhood were the most reliable security the world could offer to women.Footnote 130 Schlafly, as well as, more generally, the members of the STOP ERA movement, argued that the ERA would invalidate state laws that made it the obligation of the husband to support his wife financially, wiping out the right of a wife to receive social security benefits based on her husband’s earnings. One thing is clear: their primary concern was certainly not with women (including many Black women and other racialized minorities), for whom a supportive husband was not in the picture or who were married to men with very little income. These were women, in other words, who were already destined to care and homemaking, although not of their own children or of their own homes, as well as to other menial and underpaid jobs.

By comparing the constitutional evolution in both Europe and the United States, we can only hypothesize that the US Constitution’s lack of European-style motherhood and family protection clauses allowed the equal rights provision to be perceived as much more threatening to traditional family roles and the system of protections for the legally enforced dependency of women than the equality provisions of the interwar and, as we shall see, postwar European constitutions. In the end, few of those who opposed the ERA argued for women’s inequality: instead, they urged the importance of preserving women’s traditional family roles and what they called “traditional family,” which, for many, had in fact never been more than a cultural construct.Footnote 131 Timing was also a crucial factor, since by the time the amendment was finally passed, the New Right had begun to focus on the family as a source of political mobilization, facilitating the drawing of links between the amendment and abortion and homosexuality in ways that ultimately helped sustain the argument of the threat to the traditional family, thus blocking its adoption.Footnote 132

1.8 Post–World War II Constitutionalism: Between Continuation and Rupture, toward Inclusive Gender Constitutionalism

The embracing of sex equality became a defining feature of liberal democratic constitutionalism in the context of the human rights revolution and the second wave of democratic constitutionalism led by Western European countries coming out of the ashes of World War II. This constitutionalism would be exported to much of the world in the context of decolonization and also inspire constitutions in later waves of democratization. This is also the time when those European countries that came to solidly embrace democratic constitutionalism but had not enfranchised women, including France, finally felt the urge to do so.Footnote 133 The first international convention focusing specifically on women, the Convention of the Political Rights of Women, adopted in 1952, similarly addressed many of the inequalities that women had enjoyed thus far in accessing and transmitting their nationality, although women’s equal citizenship still remains unrealized in many countries of the world.Footnote 134 More crucially, the endorsement of either the equality between men and women, the ban on discrimination on the grounds of sex as well as of race, or the recognition of some notion of marital equality became a feature in all the main human rights instruments and constitutions adopted at the time.Footnote 135 A legally ordained hierarchy between the sexes or the races came to be seen increasingly in contradiction with the egalitarian ethos of liberal democratic constitutionalism and the new human rights order. Some of the postwar constitutions also added a reference to sex equality when referring to several of the domains and institutions in which women had traditionally been relegated to a lesser legal status, such as marriage, the working place, or the educational system.Footnote 136

Although all of these signs expressed a commitment to remove the traces of sexual subordination from the legal realm by promising to deliver, at best, a gender-neutral order, some sex-based differentiations would linger for years to come, including some explicitly entrenched in constitutional texts, shaping women’s differential constitutional membership. Moreover, the axis of gender differentiation was tackled to a lesser extent or only implicitly, and this limited the actual scope of the affirmation of “sex equality” as a feature of the new constitutional order. In other words, the basis of the sexual contract was not radically shattered: the active disestablishment of the separate spheres tradition, which dictated men’s and women’s distinctive roles in society, was not a core element of the early agenda of post–World War II constitutionalism.

After all, timewise, this was the heyday of the breadwinner family model. The 1950s and early 1960s in fact coincided with a strong postwar pronatalist movement encouraged by the relief that the end of two decades of depression and war had brought and the “delights at the benefits of the first real mass consumer economy, with millions of new houses built and furnished with comforts and time-saving appliances that would have been unthinkable just a few years earlier.”Footnote 137 In this context, the idea that marriage should provide both husband and wife with “sexual gratification, personal intimacy, and self-fulfillment” reached its peak,Footnote 138 and divorce rates declined. When wives and mothers did take paid employment, it was generally part-time or in seasonal jobs. Gender and pay inequality in the labor market was rampant at the time and in fact grew during the 1950s and 1960s.Footnote 139 And, although African American and immigrant women were much more likely than whites to work outside the home – including in white homes – they were hugely underrepresented in mass media and popular culture.Footnote 140

Also, despite criticism of the bourgeois family in the dominant philosophy under state socialism, the persistent reference in constitutional texts to the need for public provisions of care,Footnote 141 and the insistence of women joining the sphere of production, many countries of the Eastern Block strongly promoted women both as mothers and coworkers with men through measures that encouraged women to bear children, influenced by a demographic concern (especially since the late 1960s). Apart from propagandistic means, such as different honorary titles for bearing and rising children, these measures included long maternity leaves, the criminalizing of abortion in the most extreme cases, and financial incentives for mothers. Given that communism had not been accompanied by a significant revisitation of hegemonic masculinity encouraging men to be more involved in the private sphere and in caretaking, this then translated more often than not in women having a double shift.Footnote 142

These conditions were, to some extent, reflected in the constitutional gender order of the time. It therefore makes better sense to think of the postwar constitutional moment as representing a mix between continuity and progressive change rather than a moment of full rupture as far as the gender order is concerned. Tellingly, and in spite of women’s political emancipation through enfranchisement, some evident sex-based distinctions remained, reminding of women’s traditional exclusion from the public sphere of citizenship functions and duties. These included, paradigmatically, women’s differential treatment regarding military duties,Footnote 143 but also, for instance, sex discriminatory rules on the succession of the Crown in some parliamentary monarchies, as in the case of Spain.Footnote 144 More importantly, human rights treaties,Footnote 145 European constitutions of the time, and those that, in the context of decolonization, emulated them, acknowledged the need to protect mothers and the institution of the family (oftentimes explicitly referred to as heterosexual or marital) as the foundational unit of society, the old repository of care and dependence, deserving of state recognition and protection. Within this family domain, the specific centrality of motherhood was also generally acknowledged. In fact, some of the new postwar constitutions were still quite specific about women’s expected roles within the breadwinner family model, the dominant cultural symbol of the time, and demanded state assistance and support.

In this framework, post–World War II European constitutionalism continued with the maternalist strand of interwar European constitutionalism and replicated its combination of constitutional sex equality, motherhood, and family protection. Not everyone, however, had expected this coexistence to be peaceful. In fact, Germany’s 1949 constitution or Basic Law (Grundgesetz [GG]), resulting from a constitution-making process in which women had less participation than in the former 1919 Weimar Constitution, had first been drafted without a sex equality provision, precisely because conservative forces feared that a constitutional guarantee of equality for women could be deployed to harm women by depriving them of their “special protections.”Footnote 146 In the end, it fell on one of the only four women selected to participate in the constituent assembly, Elisabeth Selbert, to travel the country to advocate in favor of including an equality provision specifically referencing men and women.Footnote 147 Yet notice that one of the arguments Selbert would often put forward in making her case was that the equal rights provision was quite consistent with the law’s different treatment of men and women and that the “husband’s obligation to support [the family] was equivalent to the wife’s obligation to educate the children and run the household.” This, then, was the confined gender equality vision of the time.

As we have seen, the Grundgesetz eventually included an equality clause with a sex discrimination ban (articles 3 [2] and 3 [3], now with no restriction to the realm of civic rights compared to the Weimar Constitution, thus rendering the patriarchal family law in the German Civil Code unconstitutional). But, not surprisingly, Germany’s Basic Law also included a provision referring to the protection of the family and mothers (article 6).Footnote 148 The precise scope of the latter and the question of whether or not it should protect out-of-wedlock children and unwed mothers, of which there were many after the war, once again divided women from different political perspectives and class sensibilities. Still, the German Constitution was not the only text, nor the most explicit one, addressing the dominant breadwinner family model in the postwar period. Italy’s 1947 constitution (drafted with only a small participation of women – 21 out of 556 elected members – after women attained suffrage in 1946) also banned discrimination on the grounds of sex while at the same time recognizing the family as “a natural association founded on marriage” (article 29.1). The text also guaranteed “the moral and legal equality of spouses” (article 29.2), foreseeing, however, that “such equality is to take place within legally defined limits to protect the unity of the family.” Article 36.1 referred specifically to the family wage concept, and article 37, despite recognizing in paragraph 1 that “working women are entitled to equal rights and, for comparable jobs, equal pay as men,” described in paragraph 2 that “working conditions have to be such as to allow women to fulfil their essential family duties and ensure an adequate protection of mothers and children” (italics are ours). As in postwar Germany, women in Italy spoke with different voices during its constituent process. They agreed on the necessary protection of motherhood and the family while holding competing visions as to the normative basis on which this protection should also be extended to single mothers. And yet, they all recognized motherhood as serving a social function and deserving protection as such.Footnote 149

In sum, this incipient post–World War II European constitutionalism, which would later travel to the rest of Europe and also inspire constitutions in much of Latin America, Africa, and Asia down the road, not only acknowledged sex equality but also the central role of marriage and family as the natural bedrock for human society, recognizing at the same time the importance of the state in supporting the family and also, more specifically, motherhood. One has only to look at some historical examples to understand the extent to which this constitutionally enshrined ideology limited the breadth of the affirmation of women’s equality. This is especially true when we consider that, in many countries, a systematic reform of family, criminal, employment, or social security legislation to render it gender neutral would only take place years after the constitution had come into force. Moreover, because the line that separates discrimination from justified differentiation has always been drawn based on what were considered to be “reasonable” or “objective” distinctions between the sexes, this allowed for different interpretations of what constitutional sex equality actually meant.

The case of Italy is most telling, for it shows how a sex equality mandate like the one included under article 3 of the 1947 Italian Constitution could be subverted to justify a disparate treatment, as long as some alleged difference between the situation of men and women were defended as reasonable. Italy did not pass its sex egalitarian legal reforms until the 1970s, including the first major family code reform approved in 1975.Footnote 150 Its 1947 constitution, as we have seen, affirmed that marriage entailed the “moral and legal equality of the spouses,” yet qualified this equality principle with a phrase allowing for a wide realm of discretion (“within legally defined limits to protect the unity of the family” [article 29.2]). Because of this, the Italian Constitutional Court was confronted several times during the 1960s by various discriminatory provisions. Its early decisions show how a patriarchal and hierarchical understanding of the family and the assumed breadwinner family model guided its interpretation of what the notion of “family unity” entailed.

Most infamously, in 1961, the Constitutional Court upheld a Criminal Code provision making a wife’s adultery a criminal offense, yet qualifying a husband’s as such only when it was committed within the household or “notoriously” elsewhere, considering this distinction justified on the basis of the social consensus around the different meanings of men’s and women’s adultery as well as on the fact, taken as self-evident, that the wife’s adultery constituted a more serious attack to family unity.Footnote 151 Although the court soon departed from this precedent, it had other opportunities to confirm the family ideology that was prevalent at the time. In 1966, for instance, the court reinforced a Civil Code regulation whereby, in case of widowhood followed by a new marriage, only women – and not men – were expected to inform judicial authorities. These, in turn, could then assess whether it was necessary to deprive women of the power to administrate the property children would inherit from the first marriage (fearing that the remarrying widow might be more distracted by the new family and its needs than would a remarrying widower under equivalent circumstances).Footnote 152 And, in 1967, the court once more validated a Civil Code regulation whereby, in case of consensual separation, a husband had to provide for all of his wife’s needs regardless of the latter’s financial situation (the wife being only obliged to do so in case of insufficient means of subsistence). This time, the different treatment was allegedly justified by a superior status granted by the law to the husband within the family, a superior status that was said to imply both his “marital authority” and his obligation to provide for his wife.Footnote 153

Although perhaps less overt in its constitutional incorporation of the traditional family model than Italy, Germany’s constitutional history also provides a case in point. The 1949 German Basic Law entered into force before the main sex egalitarian reforms of family law were passed in the 1970s.Footnote 154 It has to be said that, already from the start, the plain affirmation of women’s hierarchical subordination came to be seen as incompatible with the new constitutional order. Yet the same could not be said about the separation/differentiation axis. Thus, when interpreting the gender equality and sex antidiscrimination clauses in the constitution, the early jurisprudence of the Federal Constitutional Court (FCC) held that a different treatment on account of sex was constitutionally forbidden, except for when it could be grounded on “objective biological or functional” sexual differences.Footnote 155 This rhetoric (which in some form survived until the 1990s) had its zenith during the 1950s and 1960s, and it allowed the court to interpret sexual equality as requiring respect for “legitimate sexual differences,” be they biological or functional in nature. Particularly strong emphasis was laid on the equal worth of the roles of men and women within the family, of fathers and mothers, and of the work of breadwinners and housewives.Footnote 156 The “two-track” citizenship model, so to speak, was constitutionally acceptable, and this allowed traditional gender stereotypes to go unchallenged. What were not acceptable, according to the FCC, were arbitrary distinctions that could only be interpreted as relics of patriarchy, such as granting the father the last word when parents could not reach an agreement on decisions concerning their children’s welfare.Footnote 157 In other words, there had to be equal worth attached to men’s and women’s distinctive roles within the family (i.e., the breadwinner and the complementing housewife).Footnote 158 This doctrine allowed the court to uphold a rule whereby a man could be legally obliged to financially support his out-of-wedlock children, which the mother was expected to raise,Footnote 159 as well as another rule that granted widowers a pension only if the deceased wives had been the main breadwinners, whereas a widow’s pension was granted regardless of similar considerations.Footnote 160

This had a bearing on the interpretation of the family provision in Germany’s Basic Law. Indeed, at the time, much of the German legal scholarship argued that only the traditional family, organized around a housewife and a breadwinner, could enjoy the protection of article 6 (1), sometimes alluding to its roots in natural law and Christianity.Footnote 161 The truth of the matter is that the court itself never went as far as explicitly articulating its preference for the breadwinner family model. Rather, this was the actual result of a doctrine exalting the equal worth of both sexes while demanding respect for the “objective natural and functional differences” between men and women. In theory, the court was simply upholding the duty of the state to remain neutral. Marital privacy, it held, should encompass the autonomy of the couple in deciding about the internal structure of the family, including whether one or both spouses should be income earners.Footnote 162 The problem, as we shall see, is that this supposed neutrality proved to be rather fictional in the face of a social reality and a legal system that clearly privileged the culturally dominant model of the separate spheres tradition and separate roles for men and women, a social reality the court ended up endorsing.

This family exceptionalism, exempting the domain of the family from a strict application of the constitutional gender equality mandate, was not an exclusive feature of European post–World War II constitutionalism. After all, this constitutionalism impacted many constitutions written for new states emerging into independence in the decades to come, sometimes copying the basic constitutional rules of their former colonial masters. In fact, such family exceptionalism was kept alive in many countries around the world for a very long time, especially, as we will discuss, in contexts in which the formal or informal influence of religious forces and traditions proved strongest or in those in which cultural norms accommodated under systems of legal pluralism survived free of constitutional sex equality scrutiny.Footnote 163

India represents a fascinating case, given how progressive some of the provisions inserted in the Indian Constitution were for their time. The Constitution of India came into force on January 26, 1950, and contains both a generic right to equality (article 14) and a prohibition of discrimination on the grounds of sex (article 15 [1]). It also contains a clause, article 15 (3), allowing the state to make special provisions for women and children; one (article 16) guaranteeing equality of opportunity for all in public employment and prohibiting discrimination on the grounds of sex (article 16 [2]); one (article 325) prohibiting electoral ineligibility on grounds of sex; and yet another one (article 39) requesting the state to direct its policies toward securing, among other things, equal rights to livelihood and equal pay for equal work for men and women.Footnote 164 Yet, as has been criticized,Footnote 165 none of this impeded the courts to uphold, until 2018, criminal law provisions sanctioning different rules for male and female adultery on the basis of patriarchal understandings of women’s sexuality as a male possession;Footnote 166 from disqualifying women from certain positions based on their different nature and functions;Footnote 167 or from justifying different retirement rules for male and female air attendants by referring to women’s role as mothers and caregivers.Footnote 168 Nor was the constitution taken by the courts to “provide for an overhaul or reform of personal and religious laws which governed women’s private lives at home and in families in relation to matters of marriage, guardianship, adoption or inheritance,”Footnote 169 despite the fact that the constitution contains an – as of yet – unfulfilled directive principle (article 44) mandating the state to enact a uniform civil code.Footnote 170

In sum, modern constitutionalism was superimposed on an extractive reproductive and heteronormative family structure with racist undertones, which was naturalized and even romanticized. This is the reason why every attempt to advance toward the affirmation of women’s equal citizenship, hand in hand with a more egalitarian and democratic family, would be resisted as a challenge to the very structure of the foundational constitutional order rather than as a natural step in the gradual conquest of the enlightened contractarian project of coexistence among naturally free individuals. This also explains why, in order to tell the story of women’s evolving citizenship, one cannot simply tell the story of women’s gradual acquisition of men’s rights. Instead, the story has to include the transformation of the understanding of the roles primarily assigned to women and around which different groups of women have necessarily had competing visions and anxieties, built to a greater or lesser extent their sense of identity and purpose, and managed to secure a system, however fragile, of protections.

In the United States, this dominant family ideology and the way it was portrayed as increasingly under threat would lead to a failed attempt to amend the constitution – more specifically, to the failure to incorporate a sex equality provision. In Europe and elsewhere, sex equality provisions made it into constitutional texts and were probably less threatening because the constitutions also embedded protections of women as mothers, as well as of marriage and the family as institutions. This maternalist tradition allowed the sex equality provisions to be interpreted in light of family, marriage, and motherhood protective clauses, allowing the dominant breadwinner family ideology to shape the contours of how far constitutional equality could actually go.

It would take over a century and a half since the dawn of constitutionalism in the Western world to revisit marriage and family law in order to ensure women’s legal equality with men, for it was only in the 1960s and 1970s, and under the influence of second-wave feminism’s attack on the patriarchal family model, that both marriage and the family, regarded as the paradigmatic realms of tradition, began to be more seriously confronted, and with them, the place of women in society and the implicit understandings of the prevalent gendered conceptions of citizenship.

Footnotes

1 Cited in Reva Siegel, “The Nineteenth Amendment and the Democratization of the Family,” Yale Law Journal Forum 129 (2020): 459.

2 See Joan B. Landes, Women and the Public Sphere in the Age of the French Revolution (Cornell: Cornell University Press, 1988), 158.

3 See Helen Irving, Gender and the Constitution: Equity and Agency in Comparative Constitutional Design (Cambridge: Cambridge University Press, 2008), 5, in which she cites Abigail Adams, cited in L. H. Butterfield et al., eds., The Book of Abigail and John: Selected Letters of the Adams Family, 1762–1784 (Cambridge, MA: Harvard University Press, 1975).

4 See John Kang, “Patriarchy and Constitutional Origins,” in Constitutions and Gender, ed. Helen Irving (Cheltenham, UK: Edward Elgar, 2017), 513, in which he cites Carol Berkin, Revolutionary Mothers: Women in the Struggle for America’s Independence (New York, NY: Alfred A. Knopf, 2005).

5 Ruth Rubio-Marín, “The Achievement of Female Suffrage in Europe: On Women’s Citizenship,” International Journal of Constitutional Law 12, no. 1 (2014), 89.

6 See Helen Irving, “Citizenship and Nationality,” in Irving, Constitutions and Gender, 387–413. See also Jo Shaw, The People in Question: Citizens and Constitutions in Uncertain Times (Bristol: Bristol University Press, 2020), on gender discrimination, 131, 141–43, 147–48, and on ethnicity-based discrimination, 107–9, 114–15, 234–35, 140–41, 143–44. Note that naturalization and citizenship rules exemplified also the intersection between race and sex discrimination: “If a woman was not white, she was ineligible for naturalization and could not, regardless of coverture, take on the citizenship of an American husband. On the other hand, even if eligible, she could not be naturalized if her husband was ineligible.” See Nancy F. Cott, Public Vows: A History of Marriage and the Nation (Cambridge: Harvard University Press, 2000), 165.

7 In fact, a number of publications refer to the “founding mothers” when describing the various ways in which women supported the revolution in North America. See, for instance, Cokie Roberts, Founding Mothers: The Women Who Raised Our Nation (New York: William Morrow, 2004). On women in the French Revolution, see Shirley Elson Roessler, Out of the Shadows: Women and Politics in the French Revolution (New York: P. Lang, 1996).

8 Ruth Lister, Citizenship: Feminist Perspectives, 2nd ed. (New York: New York University Press, 2003), 71.

9 Ruth Lister et al., Gendering Citizenship in Western Europe: New Challenges for Citizenship in a Cross-National Context (Bristol, UK: The Policy Press, 2007), 21.

10 Revolutionary France abolished slavery throughout its conquered territories in 1794, following the 1971 Haitian Revolution, and the United Kingdom’s Slavery Abolition Act of 1833 abolished slavery in many parts of the British Empire. Nevertheless, the institution of slavery remained central to the economy of the Southern states in the United States until its complete abolition at the end of the American Civil War. The original constitution had expressed the view that Blacks (or, for that matter, Indians) were not fully human, and so their disenfranchisement had naturally followed. Slavery and the inferior political status of Blacks for representation purposes was, if not explicitly written into the US Constitution, then at least acknowledged in its Apportionment Clause and the Fugitive Slave Clause. This had to be overcome by the Thirteenth, Fourteenth, and Fifteenth Amendments, also known as the Reconstruction Amendments.

11 Stephanie Coontz, Marriage, a History: How Love Conquered Marriage (New York: Penguin Books, 2006), 145–46.

13 Charles W. Mills, “Intersecting Contracts,” in Contract and Domination, eds. Carole Pateman and Charles W. Mills (Cambridge: Polity Press, 2007), 187.

14 It has been noted that colonization transformed not only the material lives of colonized people but also their sense of what it meant to be female and male. See Margaret Strobel, “Women’s History, Gender History, and European Colonialism,” in Colonialism and the Modern World: Selected Studies, eds. Gregory Blue, Martin Bunton, and Ralph Croizier (Armonk, NY: M. E. Sharpe, 2002), 57. On the imposition of European domestic life and morals at family level and as central to validate the whole colonial enterprise, see also Amy Kaler, “Visions of Domesticity in the African Women’s Homecraft Movement in Rhodesia,” Social Science History 23, no. 3 (1999): 269309.

15 Kang, “Patriarchy and Constitutional Origins,” 501.

16 Coontz, Marriage, a History, 148.

17 Footnote Ibid., 146–47. If old forms of subordination were legitimized by God’s words, nature, tradition, and ascription, civil subordination was to be generated through contracts about property in the person. See Carole Pateman, “On Critics and Contract,” in Pateman and Mills, Contract and Domination, 209–10.

18 See Reva B. Siegel, “‘The Rule of Love’: Wife Beating as Prerogative and Privacy,Yale Law Journal 105, no. 8 (1996): 2117–207.

19 Coontz, Marriage, a History, 148.

20 Jean-Jacques Rousseau, Emile or On Education, trans. Allan Bloom (New York: Basic Books, 1979), 412, 425–26.

21 Jean-Jacques Rousseau, “The Social Contract,” in The Social Contract and The First and Second Discourses, trans. Susan Dunn (New Haven, CT: Yale University Press, 2002), 149.

23 Cited in Barbara Taylor, “Mary Wollstonecraft, sobre mujer y vida pública,” in Mujeres para la historia: figuras destacadas del primer feminismo, ed. Rosa María Capel (Madrid: Abada Editores, 2004), 59.

24 Carole Pateman, The Sexual Contract (Stanford: Stanford University Press, 1988).

25 In this regard, see also Susan Moller Okin, Women in Western Political Thought (Princeton, NJ: Princeton University Press, 1979).

26 Pateman, The Sexual Contract, 181.

27 Indeed, “from the early modern period onward, ‘race’ became the vehicle through which certain groups of humans were deemed to be inferior, to be at the margins of humankind or even outside of humanity altogether,” with modern conceptions of race in the seventeenth and eighteenth century built around theories about the stages of “civilization.” See Carole Pateman, “Race, Sex, and Indifference,” in Pateman and Mills, Contract and Domination, 136.

28 See David Theo Goldberg, The Racial State (Maiden, MA: Blackwell Publishers, 2002); Charles W. Mills, The Racial Contract (Ithaca: Cornell University Press, 1997).

29 For instance, Pateman recalls that, since race required purity of the bloodline, the interrelation between the sexual and racial contracts meant that the sexuality of whites and Blacks was seen quite differently. The white race was protected through prohibitions, both formal and informal, against interracial sexual relations, including through the lynching of Black men for the alleged “rape” of white women. Slaves were prohibited from marrying (although their unions were regularized after emancipation), and white men had an unconstrained access to women slaves who would pass their lifetime bondage onto their joint children. See Pateman, “Race, Sex, and Indifference,” 134–35, 142–44. The forceful incorporation of nonwhites into the whiteman’s patriarchal household deprived nonwhite men of the citizenship standing of the social contract as well as of “the right to their wives” that the sexual contract would have otherwise secured, while also depriving nonwhite women of the possibility to inhabit “their private sphere” instead of being forcefully incorporated into their owners’. On the ways in which the racial contract trumped the sexual contract, see, for instance, Pauline E. Schloesser, The Fair Sex: White Women and Racial Patriarchy in the Early American Republic (New York: New York University Press, 2002), 33. Here Schloesser explains how one’s status in slavery nullified the protections of coverture, for if either husband or wife was enslaved, the owner retained his right to treat his or her slave as property. See also Mills, “Intersecting Contracts,” 182. Mills explains how, in the colonial enterprise, “nonwhite women in the public sphere are in the private sphere of the white patriarch, as minors subject to their paternal rule,” in an extended colonial family model where white women were “simultaneously subordinated individually in their private families and privileged collectively as co-rulers” of the white colonial family household. See Mills, “Intersecting Contracts,” 182.

30 Immanuel Kant, The Philosophy of Law, trans. W. Hastie (Edinburgh: T. & T. Clark, 1887), §24, 110, cited in Pateman, The Sexual Contract, 168, Footnote n. 38.

31 John Locke, Two Treatises of Government, ed. P. Laslett (Cambridge: Cambridge University Press, 1967), II, §78, cited in Pateman, The Sexual Contract, 168, Footnote n. 39.

32 Immanuel Kant, Political Writings, ed. H. Reiss (Cambridge: Cambridge University Press, 1970), 139, cited in Pateman, The Sexual Contract, 169, Footnote n. 43.

33 Pateman, The Sexual Contract, 169.

34 Kant, Philosophy of Law, chap. 2, sec. 3, §23, 109, cited in Pateman, The Sexual Contract, 170, Footnote n. 46.

35 Pateman, The Sexual Contract, 170.

36 Immanuel Kant, Lectures on Ethics, trans. L. Infield (New York: Harper and Row, 1963), 166–67, cited in Pateman, The Sexual Contract, 170, Footnote n. 49.

37 G. W. F. Hegel, Philosophy of Right, trans. T. M. Knox (Oxford: Clarendon Press, 1952), §75, and addition to §161, cited in Pateman, The Sexual Contract, 173, Footnote n. 56.

38 Footnote Ibid., §163, cited in Pateman, The Sexual Contract, 174, Footnote n. 58.

39 Footnote Ibid., cited in Pateman, The Sexual Contract, 174, Footnote n. 60.

40 Pateman, The Sexual Contract, 175.

42 These philosophical theories were in turn supported by scientific research on the biology/nature of women developed in the second half of the eighteenth century, which produced a new discourse on the fundamental differences between the two sexes. See Andrea Maihofer, Geschlecht als Exiszenzweise (Frankfurt: Ulrike Helmer Verlag, 1995) 22ff, 91ff.

43 Kant, Philosophy of Law, chap. 2, sec. 3, §26, 111–12, cited in Pateman, The Sexual Contract, 172, Footnote n. 53.

44 Pateman, The Sexual Contract, 171.

46 Hegel, Philosophy of Right, §165, cited in Pateman, The Sexual Contract, 176, Footnote n. 65.

47 Footnote Ibid., §166, and addition, cited in Pateman, The Sexual Contract, 176, Footnote n. 66.

48 Pateman, The Sexual Contract, 176.

49 Hegel, Philosophy of Right, §171, cited in Pateman, The Sexual Contract, 177, Footnote n. 67.

50 Essays on Sex Equality, ed. Alice S. Rossi (Chicago: University of Chicago Press, 1970), 4546, cited in Pateman, The Sexual Contract, 161, Footnote n. 23.

51 Pateman, The Sexual Contract, 162.

52 John Stuart Mill, “The Subjection of Women,” in Rossi, Essays on Sex Equality, 168–70, cited in Pateman, The Sexual Contract, 162, Footnote n. 25.

53 Coontz, Marriage, a History, 151.

54 The fact that women were major and active political actors during the revolution is best captured by the label “les tricoteuses,” or “knitters,” which was coined to qualify those women who were involved in revolutionary politics, as their political participation often meant that they had to bring along domestic work that they could not afford to interrupt or set aside. See Dominique Godineau, Les citoyennes tricoteuses: Les femmes du peuple à Paris pendant la Révolution française (Aix-en-Provence: Alinéa, 1988) cited in Stéphanie Hennette-Vauchez and Ruth Rubio-Marín, “The Political Subject: A Gendered Enterprise,” in The Cambridge Companion on Law and Gender, eds. Stéphanie Hennette-Vauchez and Ruth Rubio-Marín (forthcoming). Also, it is important to recall that revolutionary women were extremely vocal in their claim to the right to bear arms and be members of the national guard; in fact, although they were never formally admitted, some actually joined the army. See Dominique Godineau, “De la guerrière à la citoyenne. Porter les armes pendant l’Ancien Régime et la Révolution française,” Clio. Femmes, Genre, Histoire, no. 20 (2004): 4369.

55 Irving, Gender and the Constitution, 7. It is worth noting that legislative drafts in revolutionary France, which were discarded under Napoleonic influence, embodied a genuine attempt to actively apply an egalitarian lens to the family, which would cancel any notion of marital authority, and to promote one of equality between the spouses in terms of assets management and patrimonial decision-making. See Hugues Fulchiron, “La femme, mère et épouse dans le droit révolutionnaire,” in Les femmes et la Révolution française, vol. 1, ed. Marie-France Brive (Toulouse: Presses universitaires du Mirail, 1989), 377, cited in Hennette-Vauchez and Rubio-Marín, “The Political Subject,” in Hennette-Vauchez and Rubio-Marín, The Cambridge Companion on Law and Gender (forthcoming).

56 At the same time, it has been observed that, throughout the nineteenth century and into the first decade of the twentieth century, it was very difficult for white women to see Black women as political equals in a context of widespread racism and colonialism and that white women, who attacked the sexual contract, could still compare their position favorably to that of the women of “lesser races.” See Mills, “Intersecting Contracts,” 147–48. See also Schloesser, The Fair Sex, 80–82, on how, in the United States, Mercy Otis Warren, Abigail Smith Adams, and Judith Sargent Murray – leading female intellectuals in the revolutionary period – all ended up by acquiescing to the terms of racial patriarchy, embracing a vision of themselves as possessing distinctive virtues in a particular civilizing mission in the early days of the republic. On the need to challenge “imperial feminism,” meaning the way the movement for female emancipation in Britain was closely linked to theories of racial superiority and empire, see Valerie Amos and Pratibha Parmar, “Challenging Imperial Feminism,” in Feminism and “Race,” ed. Kum-Kum Bhavnani (Oxford: Oxford University Press: 2001), 19.

57 Coontz, Marriage, a History, 152.

59 Coontz, Marriage, a History, 153.

61 See Anne Verjus, Le cens de la famille. Les femmes et le vote (Paris: Éditions Belin, 2002); Jennifer Heuer, The Family and the Nation: Gender and Citizenship in Revolutionary France, 1789–1830 (Ithaca: Cornell University Press, 2005); Suzanne Desan, The Family on Trial in Revolutionary France (Berkeley: University of California Press, 2006).

62 Coontz, Marriage, a History, 153.

63 Janet Halley and Kerry Rittich, “Critical Directions in Comparative Family Law: Genealogies and Contemporary Studies of Family Law Exceptionalism,” American Journal of Comparative Law 58, no. 4 (2010): 756.

64 See Marianne Weber, Ehefrau und Mutter in der Rechtsentwicklung (Tübingen: J. C. B. Mohr, 1907), cited in Lister et al., Gendering Citizenship in Western Europe, 32.

65 Coontz, Marriage, a History, 153.

66 See Jorge L. Esquirol, “René David: At the Head of the Legal Family,Rethinking the Masters of Comparative Law, ed. Annelise Riles (Oxford: Hart Publishing, 2001).

67 See Bürgerlichen Gesetzbuches, § 1354 BGB, in force until 1953. For the (unsuccessful) protests against the German Civil Code, see Ute Gerhard, Unerhört: Die Geschichte der deutschen Frauenbewegung (Hamburg: Rowohlt Verlag, 1990), 225ff.

68 Bürgerlichen Gesetzbuches, § 1358 BGB.

69 See William Blackstone, “Of Husband and Wife,” in Commentaries on the Laws of England, ed. Wayne Morrison (London: Routledge-Cavendish, 2001), vol. 1, chap. 15. Master of the household, the husband could command his wife’s obedience even through the use of “moderate correction” (i.e., corporal punishment or “chastisement”) if she defied his authority.

70 Coontz, Marriage, a History, 153.

77 Raquel Rico Linage, Constituciones históricas (Sevilla: Universidad de Sevilla, 1989), 23.

78 Siegel, “The Nineteenth Amendment,” 456. See also Hendrik Hartog, Man and Wife in America: A History (Cambridge, MA: Harvard University Press, 2000), 101.

79 See Reynolds v. United States, 98 U.S. 145, 165 (1878).

80 See Muller v. Oregon, 208 U.S. 412, 422 (1908).

81 The women’s movement was divided along class lines from the start, and not all of women’s groups placed the same importance in achieving suffrage. In Germany, for instance, the Allgemeine Deutsche Frauenverein (German Association of Female Citizens) was founded in 1865 and is perceived as the beginning of the German (bourgeois) women’s movement. The ADF claimed a right to work for (bourgeois) women. The women’s worker movement began in 1869 with the Verein zur Fortbildung und geistigen Anregung der Arbeiterfrau (Association for the Lifelong Training and Intellectual Stimulation of Working Women). One of the most important representatives of the more radical wing of the women’s movement was Hedwig Dohm (1813–1919), along with Clara Zetkin (1857–1933). Already in 1876, Dohm demanded comprehensive and full equality of women in legal, economic, and political terms, as well as the right to vote for women. See Hedwig Dohm, Der Frauen Natur und Recht: Zur Frauenfrage zwei Abhandlungen über Eigenschaften und Stimmrecht der Frauen (Berlin: Wedekind & Schwieger, 1876).

82 See Louise Michele Newman, White Women’s Rights: The Racial Origins of Feminism in the United States (New York: Oxford University Press, 1999).

83 See Akhil Reed Amar, “Women and the Constitution,” Harvard Journal of Law and Public Policy 18, no. 2 (1995): 465–74, at 465–67. Middle-class women were at the heart of the British antislavery movement, and after the British ended slavery in 1833, they turned their attention to the United States. That said, it has been noted that “women anti- slavery activists commonly came to the movement out of Christian duty… and a sense of cultural superiority.” See Pateman, “Race, Sex, and Indifference,” 148.

84 Irving, Gender and the Constitution, 76–78.

85 See Bradwell v. Illinois, 83 U.S. 130 (1872).

86 In Canada, for instance, article 41 of the Constitution Act of 1867 specifically limited voting to “every male British subject.”

87 Irving, Gender and the Constitution, 10–11.

88 See Kathleen M. Sullivan, “Constitutionalizing Women’s Equality,” California Law Review 90, no. 3 (2002): 736.

89 See Minor v. Happersett, 88 U.S. 162 (1874).

90 See Susanna Mancini, “From the Struggle for Suffrage to the Construction of a Fragile Gender Citizenship: Italy 1861–2009,” in The Struggle for Female Suffrage in Europe: Voting to Become Citizens, eds. Blanca Rodríguez-Ruiz and Ruth Rubio-Marín (Leide-Boston: Brill, 2012), 378, citing R. Romanelli, “Circa l’ammissibilità delle donne al suffragio politico nell’Italia liberale. Le sentenze pronunciate dalla magistrature nel 1905–1907,” in Laboratorio di storia. Studi in onore di Claudio Pavone, eds. Paolo Pezzino and Gabriele Ranzato (Milano: Franco Angeli, 1994).

91 Corte Suprema de Justicia de la Nación [CSJN] [National Supreme Court of Justice], 15/05/1929, “Don Julieta Lanteri Renshaw, solicita se ordene su enrolamiento en su carácter de argentina naturalizada,” Fallos de la Corte Suprema de la Nación, t. 154, 283.

92 Limited voting rights had been gained by women in Sweden, Finland, and some western US states in the late nineteenth century. See Ellen Carol DuBois, “Women Suffrage around the World: Three Phases of Suffragist Internationalism,” in Suffrage and Beyond: International Feminist Perspectives, eds. Caroline Daley and Melanie Nolan (New York: New York University Press, 1994), 252–76. In 1893, New Zealand, then a self-governing British colony, granted adult women the right to vote, and the self-governing British colony of South Australia did the same in 1895. Australia federated in 1901, and women acquired the right to vote and stand in federal elections in 1902. See Allison Sneider, “The New Suffrage History: Voting Rights in International Perspective,History Compass 8, no. 7 (2010): 692703. The first European country to introduce women’s suffrage in 1907 was the Grand Duchy of Finland, then part of the Russian Empire. Norway followed suit in 1913. In 1918, the United Kingdom enfranchised women over the age of thirty who met a property qualification; equal voting rights would not come, however, until 1928. The Irish Free State provided equal voting rights from its inception in 1922 until its dissolution in 1937. Still, most European, Asian, and African countries did not pass women’s suffrage until after the World War I and several European countries only did so after World War II, including France (1944), Greece (1952), Italy (1946), Switzerland (1971), and Liechtenstein (1984). See Blanca Rodríguez Ruiz and Ruth Rubio-Marín, eds., The Struggle for Female Suffrage in Europe: Voting to Become Citizens (Leiden: Brill, 2012).

93 Irving, Gender and the Constitution, 15.

95 Rubio-Marín, “The Achievement of Female Suffrage in Europe,” 12–13.

96 These divisions were not only connected to struggles as to whether race or sex-based disenfranchisement deserved the greatest concern but also to the relative importance that should be attached to the cause of suffrage and the challenge to the separate spheres tradition in the creation of a truly comprehensive women’s movement. Many Black women resented the fact that white leaders dismissed their concerns – such as miscegenation, interracial rape, lynching, and their admittance to race segregated public spaces – as “race questions,” irrelevant to the foremost goal of “political equality of women” of the women’s movement. See Louise Newman, White Women’s Rights, 6, 7, 134. At the same time, the separate spheres ideology and the rebellion against women’s motherhood-only citizenship could not resonate fully with those women who had never been confined to the “private sphere” and to normative motherhood but were rather expected to work outside their home, often in precarious or exploitative conditions.

97 See Janet Zollinger Giele, Two Paths to Women’s Equality: Temperance, Suffrage, and the Origins of Modern Feminism (Woodbridge, CT: Twayne Publishers, 1995), 114. See also Ellen Carol Dubois, Feminism and Suffrage: The Emergence of an Independent Women’s Movement in America, 1848–1860 (Ithaca: Cornell University Press, 1999), 162202. The difficult political dilemma arose around the passing of the Fifteenth Amendment, which would grant suffrage rights to freed male slaves, despite the fact that Black and white women continued to be excluded from the ballot box. The two most prominent white leaders, Elizabeth Cady Stanton and Susan B. Anthony, opposed the amendment and the controversy would split the movement for a generation. By the 1890s, white suffragists would enter into “extremely unsavory alliances with racist Southern politicians.” See Pateman, “Race, Sex, and Indifference,” 149.

98 Rubio-Marín, “The Achievement of Female Suffrage in Europe,” 15–17.

99 Reva B. Siegel, “She the People: The Nineteenth Amendment, Sex Equality, Federalism, and the Family,” Harvard Law Review 115, no. 4 (2002): 9471046, at 979.

100 Footnote Ibid., 981.

101 Rubio-Marín, “The Achievement of Female Suffrage in Europe,” 16.

102 Coontz, Marriage, a History, 182.

103 Carole Pateman, “Three Questions about Womanhood Suffrage,” in Suffrage and Beyond: International Feminist Perspectives, eds. Caroline Daley and Melanie Nolan (New York: New York University Press, 1994), 341.

104 Rubio-Marín, “The Achievement of Female Suffrage in Europe,” 17.

105 Krista Cowman, “Female Suffrage in Great Britain,” in Rodríguez Ruiz and Rubio-Marín, The Struggle for Female Suffrage in Europe, 275–76.

106 See Eileen Boris, “The Power of Motherhood: Black and White Activist Women Redefine the ‘Political,’Yale Journal of Law & Feminism 2, no. 1 (1989): 2549.

107 See Irving, “Citizenship and Nationality,” 387.

108 Footnote Ibid., 389.

109 See Mackenzie v. Hare, 239 U.S. 312 (1915), in which Ethel Mackenzie unsuccessfully challenged the legal provision in the Expatriation Act of 1907, which had deprived her of the possibility to be registered in the California electoral roll following the enfranchisement of women in that state in 1911. The court reminded her that “[t]he identity of husband and wife is an ancient principle of our jurisprudence” and that a foreign marriage was voluntarily entered into “with notice of the consequences,” therefore concurring that “marriage of an American woman with a foreigner is made tantamount to voluntary expatriation.”

110 See Jennifer K. Brown, “The Nineteenth Amendment and Women’s Equality,Yale Law Journal 102, no. 8 (1993): 2194–201. Similarly, in other countries, the legislative conquest of suffrage generally gave little significance to the broader interpretation of the constitution with respect to defending women’s political rights. The Canadian Persons Case best exemplifies this. Women had gained suffrage in Manitoba, Saskatchewan, and Alberta in 1916 and, at the federal level, in 1918. However, this did not include all women. The Dominion Elections Act of 1920 excluded people disfranchised by a province “for reasons of race” from the federal franchise. This meant people of Japanese, Chinese, and Hindu (meaning any non-Anglo-Saxons from the Indian subcontinent) origin were excluded from federal elections in British Columbia and Saskatchewan. This would last until 1948 and, needless to say, included women as well as men. Also, under Canada’s Indian Act, “status Indians” were denied the right to vote, while aboriginal people were enfranchised in 1960. In 1928, the Canadian Supreme Court was confronted with the question as to whether, for the purpose of being appointed to the Canadian Senate, the word “persons” in section 24 of the Canadian Constitution (the 1867 British North America Act) should be read as including women too. The Supreme Court denied it, relying on an originalist interpretation that reasserted the fact that, in 1867 and under common law, women were incapable of holding public office. See Edwards v. Attorney General of Canada, [1928] S.C.R. 276 (Can.). Fortunately, on appeal, the Privy Council (the highest court of appeals in the British Empire) reversed the decision based on a liberal interpretation that came from seeing the Canadian Constitution as a living tree capable of growth and expansion to match the evolution of societal values. See Edwards v. Attorney General of Canada, [1930] C.A. 124 (Can.). For a detailed history of the case, see Robert J. Sharpe and Patricia I. McMahon, The Persons Case: The Origins and Legacy of the Fight for Legal Personhood (University of Toronto Press, 2007).

111 Lochner v. New York, 198 U.S. 45 (1905).

112 See Adkins v. Children’s Hospital, 261 U.S. 525, 553 (1923): “In view of the great – not to say revolutionary – changes which have taken place … in the contractual, political and civil status of women, culminating in the Nineteenth Amendment … the ancient inequality of the sexes, otherwise than physical … has continued with diminishing intensity.”

113 After the conquest of the right to suffrage, the women’s movement splintered. Under the leadership of Alice Paul, the National Women’s Party decided to focus more narrowly on removing sex-based disabilities from the law of marriage and other legislation, pursuing formal equality in the law without addressing law and norms governing sex, reproduction, and the relation of market and family labor. This led to the introduction of state legislation and, in 1923, the first Equal Rights Amendment or ERA. And, although by focusing on discrimination on account of sex or marriage, both Paul and Florence Kelley had sought to avoid invalidating sex-based protective labor legislation, by mid-decade, Paul’s drive for the ERA divided the movement, with social welfare-feminists concerned that it would invalidate the sex-based protective labor legislation on which working women with family responsibilities depended at a time when unions would not organize women. Birth control and the rights of Negro women were also postponed, and many women interested in the rights of Black people, pacifism, and birth control departed the NWP. See Siegel, “The Nineteenth Amendment,” 472–71.

114 It was on the basis of the Lochner era concept of contractual and economic liberty that the Supreme Court recognized for the first time in the 1920s some protection for parental prerogatives in the education and raising of children, grounding it on the Fourteenth Amendment’s substantive due process guarantees. See Meyer v. Nebraska, 262 U.S. 390 (1923), and Pierce v. Society of Sisters, 268 U.S. 510 (1925). The right to family life (understood, even then, as autonomy and privacy, and not as an institution deserving the active support of the state) was only affirmed for the first time in Griswold v. Connecticut, 381 U.S. 479 (1965), with the protection of marital privacy and the married couple’s use of contraceptives. It has since expanded to cover a whole set of family-related autonomy rights (sometimes recognized as pertaining to the individual and sometimes to the family, but always framed as negative or noninterference rights), including the right to marry, procreate, terminate pregnancy, cohabitate with extended family, raise children, and engage in sexual intimacy. The family was simply assumed to be the underlying unit in the social structure of the US constitutional system, and this is supported by the fact that Griswold (where the Supreme Court first asserted the notion of marital privacy) referred to it as a zone of privacy derived from several constitutional amendments – that is, as (an implicit) “right older than the Bill of Rights,” thus suggesting its foundational and natural character. See also David D. Meyer, “The Paradox of Family Privacy,Vanderbilt Law Review 53, no. 2 (2000): 527.

115 This was, for instance, the case of the French Declaration of the Rights of Man and of the Citizen, proclaiming “all to be equal under the law” (article 6).

116 More specifically, article 119 provided that “Marriage, as the foundation of the family and the preservation and expansion of the nation, enjoys the special protection of the constitution. It is based on the equality of both genders. It is the task of both the state and the communities to strengthen and socially promote the family. Large families may claim social welfare. Motherhood is placed under state protection and welfare.”

117 In the end, the Weimar Constitution also offered some protection for children born out of wedlock, whose welfare had been a concern for many German feminists, especially during World War I. The Weimar text (article 119) kept a separate sentence referring to mothers’ claims to special care, suggesting that all mothers, and not only those bound by marriage, deserved such special protection.

118 See Julie C. Suk, “Feminist Constitutionalism and the Entrenchment of Motherhood,” in Special Issue: Law and the Imagining of Difference, ed. Austin Sarat (Bingley: Emerald Publishing Limited, 2018), 119. In fact, several of the women present in the assembly had taken an active part in social movements to protect mothers in the two decades preceding this constitutional moment. Different groups of women certainly differed as to the reasons why mothers deserved special protection, but the fact that this protection was needed so that family and mothers alike could meet their various obligations was widely shared by both liberal bourgeois feminists and social democrats.

120 Footnote Ibid. Some neighboring constitutions followed the German example: for instance, the 1920 Czech Constitution acknowledged that “privileges due to sex, birth, or occupation shall not be recognised” (article 106.1) while enshrining the notion that “wedlock, family, and motherhood should be under the special protection of the law” (article 126).

121 In particular, constitutions of socialist inspiration were often explicit on the need to provide for social reproduction directly and not just by protecting mothers and families. This was the case of the 1936 Constitution of the Soviet Union, with article 122 providing that “Women in the U.S.S.R. are accorded equal rights with men in all spheres of economic, state, cultural, social and political life. The possibility of exercising these rights is ensured to women by granting them an equal right with men to work, payment for work, rest and leisure, social insurance and education, and by state protection of the interests of mother and child, prematernity and maternity leave with full pay, and the provision of a wide network of maternity homes, nurseries and kindergartens.” This feature would be a constant in countries of socialist tradition, both during and after the Soviet empire. In this regard, we should note that the most influential work that touched on the issue of women’s oppression influencing Eastern European policies was Engels’s On the Origin of Family, Private Property and the State published in 1884, in which Engels claims that women’s oppression has its roots in the emergence of the monogamous family, which in its turn emerged because of the development of private property accumulated by men through a surplus of production, hence the need to significantly move women’s household tasks under the responsibility of the community. See Friedrich Engels, On the Origin of Family, Private Property and the State (London: Penguin Books, 2010).

122 In the welfare literature, there is however some variation as to the role expected of the family and the breadwinner model in different European countries. See, for instance, Gøsta Esping-Andersen, Three Worlds of Welfare Capitalism (Princeton, NJ: Princeton University Press, 1990).

123 See Ann Shola Orloff, “Gender and the Social Rights of Citizenship: The Comparative Analysis of Gender Relations and Welfare States,” American Sociological Review 58, no. 3 (1993): 323.

124 See Nancy Fraser, “After the Family Wage,” in Justice Interruptus: Critical Reflections on the “Postsocialist” Condition (New York: Routledge, 1996), 4166. Fraser explains how, when women accessed the rights of citizenship, the latter had already a masculine profile and how, when they accessed social citizenship, they did so through a rhetoric that entrenched their dependent citizenship – that is, as objects of protection because of their weak and dependent nature, or in their roles as mothers and protectors. “In this way, women’s social citizenship appears anchored in the rhetoric of domestic needs, rather than civil or political citizenship, that dominate the rights discourse in the public sphere.”

125 Coontz, Marriage, a History, 209.

126 Orloff, “Gender and the Social Rights of Citizenship,” 323.

127 Article 40.1 provides that “all citizens shall, as human persons, be held equal before the law. This shall not be held to mean that the State shall not in its enactments have due regard to differences of capacity, physical and moral, and of social function.”

128 See Julie C. Suk, We the Women: the Unstoppable Mothers of the Equal Rights Amendment (New York: Skyhork Publishing, 2020).

129 In March 2017, the ratification process resumed, and Nevada became the first state in thirty-five years to ratify the ERA. The last ratification needed was achieved on Jan. 15, 2020, in Virginia with, as of yet, uncertain legal consequences.

130 See Susan Marshall, “Ladies against Women: Mobilization Dilemmas of Anti-feminist Movements,” Social Problems 32, no. 4 (1985): 357.

131 Reva B. Siegel, “Constitutional Culture, Social Movement Conflict and Constitutional Change: The Case of De Facto ERA; 2005–06 Brennan Centre Symposium Lecture,California Law Review 94, no. 5 (2006): 1379.

132 Siegel, “Constitutional Culture,” 1390.

133 See Sylvie Chaperon, “The Difficult Struggle for Women’s Political Rights in France,” in Rodríguez Ruiz and Rubio-Marín, The Struggle for Female Suffrage in Europe, 305.

134 National legislation does not allow women to confer their nationality on an equal basis with men in many countries in the Middle East, North Africa, and sub-Saharan Africa.

135 See article 2 of the Universal Declaration of Human Rights, which guarantees the right of every human being to enjoy the rights enshrined in its provisions without distinction of any kind, including sex and race. Article 7, moreover, provides that “all are equal before the law and are entitled without any discrimination to equal protection of the law” and that “all are entitled to equal protection against any discrimination in violation of this Declaration and against any incitement to such discrimination.” The International Covenant on Civil and Political Rights envisages a broad right to equality and nondiscrimination in relation to the enjoyment of the rights laid down by its provisions and set forth in article 2.1. It also establishes an obligation for states parties to “ensure the equal right of men and women to the enjoyment of all civil and political rights set forth in the present Covenant” (article 3). Similarly, in article 23, it provides that the free and full consent of both parties to marriage is required. Similar provisions are also described by the International Covenant on Economic, Social and Cultural Rights in articles 2.2 and 3. At a regional level, the European Convention on Human Rights sets a prohibition of discrimination in article 14, whereby “the enjoyment of the rights and freedoms set forth [in the Convention] shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.” Italy’s 1947 constitution recognized citizens to have equal social dignity and be equal before the law without regard to their sex (article 3). Germany’s 1949 Basic Law (Grundgesetz [GG]) also mentioned equality between men and women (article 3 [2] GG) and prohibited disadvantages on the basis of sex (article 3 [3] GG). The Preamble to the Constitution of 1946 that the current 1958 French Constitution refers to (which has been legally binding since 1971) also recognized equality of men and women before the law.

136 For instance, the 1947 Italian Constitution, still in force, recognizes that marriage entails the moral and legal equality of the spouses (article 29.2) and that working women are entitled to equal rights and, for comparable jobs, equal pay as men are (article 37.1).

137 Coontz, Marriage, a History, 230.

138 Footnote Ibid., 233.

139 Footnote Ibid., 236.

140 Footnote Ibid. In fact, the “male breadwinner marriage” seemed so pervasive and so popular that social scientists of the time speculated that it was an inevitable result of modernization, since industrial societies relied on a necessary division of labor. This idea was articulated in 1963 in a hugely influential book by American sociologist William J. Goode entitled World Revolution and Family Patterns.

141 See, for instance, article 24 of the 1946 Yugoslav Constitution, which reads: “Women have equal rights with men in all fields of state, economic and social-political life. Women have the right to the same pay as that received by men for the same work, and as workers or employees they enjoy special protection. The state especially protects the interests of mothers and children by the establishment of maternity hospitals, children’s homes and day nurseries and by the right of mothers to a leave with pay before and after childbirth.”

142 Hilda Scott, Women and Socialism: Experiences from Eastern Europe (London: Alison & Busby, 1976), 212–13; Raluca Maria Popa, “Socialism and Gender (In)equality: Gender Relations in Socialist Theory and in the Context of Late Socialist Family and Reproductive Policies in Hungary, Poland and Romania,” (master’s thesis, CEU, Budapest College, 2003), 43–44. See also Barbara Einhorn, Cinderella Goes to Market: Citizenship, Gender, and Women’s Movements in East Central Europe (London: Verso, 1993), 1819.

143 Thus, in 1956, when Germany finally came to have an army, the constitution was amended. Article 12 (4), however, exempted women from being required by law to render service in any unit of the armed forces and prohibited them from being employed in any service involving the use of arms. Subsequently, in a 1968 amendment, article 12 (4) was replaced by article 12a (4), providing that women could be obliged to serve in the armed forces, especially in medical care units, but would not be allowed to serve in any units involving the use of arms. Since Dec. 23, 2000, the text only makes reference to the prohibition of forcing women to serve in the armed units of the military, something they are nonetheless allowed to do since Jan. 1, 2001. Notice that also article 13 of the 1974 Swedish Constitution’s equality clause, under the fundamental rights and freedoms chapter, provides that “no act of law or other provision may imply the unfavourable treatment of anyone on grounds of gender, unless the provision forms part of efforts to promote equality between men and women or relates to compulsory military service or other equivalent official duties.”

144 See article 57.1 of the Spanish Constitution (1978).

145 See Wendy Lacey, “Gender Equality: International Law and National Constitutions,” in Irving, Constituions and Gender, 140. Article 25.2 of the Universal Declaration of Human Rights establishes that both motherhood and childhood are to be given special protection. Article 10.2 of the International Covenant on Economic, Social and Cultural Rights provides that “Special protection should be accorded to mothers during a reasonable period before and after childbirth. During such period, working mothers should be accorded paid leave or leave with adequate social security benefits.”

146 Suk, “Feminist Constitutionalism and the Entrenchment of Motherhood,” 121.

147 Susanne Baer, “The Basic Law at 60 – Equality and Difference: A Proposal for the Guest List to the Birthday Party,” in “The Basic Law at 60,” ed. Susan Baer et al., special issue, German Law Journal 11, no. 1 (2010): 67, 70, 75.

148 Article 6 (1) of the German Basic Law, devoted to the family provides that “marriage and the family shall enjoy the special protection of the state,” whereas article 6 (2) acknowledges that “the care and upbringing of children is the natural right of parents and a duty primarily incumbent upon them. The state shall watch over them in the performance of this duty.” Of interest for our purpose is the fact that, according to article 6 (4) “every mother shall be entitled to the protection and care of the community” (my emphasis).

149 Suk, “Feminist Constitutionalism and the Entrenchment of Motherhood,” 125–28.

150 See Legge 19 maggio 1975, n.151, G.U. May 23, 1975, n.135 (It.).

151 See Sentenza 64/1961 (Nov. 28, 1961). Fortunately, the court would depart from this doctrine only a few years later. See Sentenza 126/1968 (Dec. 16, 1968); 127/1968 (Dec. 16, 1968); 147/1969 (Nov. 27, 1969). Around the same time, other courts around the world were confronted with claims about dissimilar treatment of men and women regarding the crime of adultery, including as a result of colonial legacies. This was the case of the Indian Supreme Court, which in 1954 issued a judgment upholding section 497 of the colonial Indian Code of Criminal Procedure (Act XLV of 1860), which only punished the male adulterer and only allowed the husband of the female partner to bring charges. See Yusuf Abdul Aziz v. State of Bombay, AIR 1954 SC 321.

152 See Sentenza 49/1966 (May 4, 1966).

153 See Sentenza 144/1967 (Dec. 12, 1967), overturned by Sentenza 133/1970 (June 24, 1970). For a critical analysis of this case law and the way the concept of family unity was initially used by the court to entrench gender stereotypes based on a patriarchal family model, see Barbara Pezzini, “La struttura di genere della famiglia nella giurisprudenza costituzionale,” in Genere e dirittto: Come il genere costruisce il diritto e il diritto costruisce il genere, ed. Barbara Pezzini (Bergamo: Bergamo University Press–Sestante Edizioni, 2012), 2631.

154 Until Mar. 31, 1953, it was foreseen that laws contrary to the gender equality clause of article 3 (2) GG would remain in force. The deadline lapsed without any major reforms. The First Equal Treatment Act (Erstes Gleichberechtigungsgesetz), covering civil aspects of marriage and family, entered into force on July 1, 1958. Certain patriarchal features of the Civil Code were “overlooked” in this reform, leading to several constitutional challenges. The first act comprehensively reforming marriage and family law (Erstes Gesetz zur Reform des Ehe- und Familienrechts) was only adopted in January 1977. See Barbelies Wiegmann, “Der Hürdenlauf der Frauen im Recht seit 1900,” in Frauen und Recht Reader, ed. Ministerium für Gesundheit, Soziales, Frauen und Familie des Landes Nordrhein–Westfalen (Düsseldorf, 2003).

155 See BVerfGE 3, 225, Dec. 18, 1953.

156 For a description of the decisions of this period, see Blanca Rodríguez Ruíz and Ute Sacksofsky, “Gender in the German Constitution,” in The Gender of Constitutional Jurisprudence, eds. Beverley Baines and Ruth Rubio-Marín (Cambridge: Cambridge University Press, 2005), 152.

157 See BVerfGE 10, 59, July 29, 1959.

158 See Rodríguez Ruíz and Sacksofsky, “Gender in the German Constitution,” 152.

159 See BVerfGE 11, 277, July 21, 1960.

160 See BVerfGE 17, 1, July 24, 1963.

161 See Christine Franzius, Bonner Grundgesetz und Familienrecht Die Diskussion um die Gleichberechtigung von Mann und Frau in der westdeutschen Zivilrechtslehre der Nachkriegszeit (1945–1957) (Frankfurt: Klostermann, 2005), 9295, referring to Friedrich Wilhelm Bosch and Günther Beitzke, two civil law professors and commentators of the time, who strongly supported the conception of the family unit as derived from natural law and Christian doctrine with a similar patriarchal structure as the one embedded in the German Constitution.

162 See, for all, BVerfGE 6, 55, Jan. 17, 1957, at 67 and 80; and BVerfGE 9, 237, Apr. 14, 1959, at 241–43. In fact, in Europe, where the institutional approach to family and marriage has prevailed constitutionally, post–World War II constitutional texts did not contain the notion of a right to family privacy, beyond the concept of inviolability of the home, intended to protect against undue searches and seizures (see, for instance, article 13 of the German Basic Law and article 14 of the Italian Constitution). This changed in the 1950s, when the European Convention of Human Rights recognized the right to private and family life, under article 8, as well as the right to marriage, under article 12. Other European constitutions would then follow suit and recognize marriage separately (described as a fundamental right, the right to marry) and family (expressed as an institution), with the state often being called on the protection of the latter. The 1978 Spanish Constitution is an example of this (article 39 refers to the family as an institution that deserves state protection, and article 32 refers to the fundamental right of men and women to marry).

163 In some countries of Islamic tradition that had purposefully sought to modernize and came to share the basic structure of the postwar gender constitutional architecture (including the prohibition of sex discrimination, the protection of motherhood, and the recalling of sex equality in domains in which women had traditionally been discriminated against – e.g., education), a further constitutional reform was deemed necessary to render explicit the equality of the spouses. This was, for instance, the case of Turkey, where the 1961 constitutional scheme, which reflected the postwar model and was practically reproduced by the 1982 constitution, required an amendment in 2001 to explicitly insert interspousal equality. In 2004 and 2010, the equality provisions would be further reformed and strengthened to incorporate a substantive equality logic. See Bertil Emrah Oder, “Women and Constitution-Making in Turkey: From Ottoman Modernism to a Constitutionalism of Women’s Platform,” in Women as Constitution-Makers: Case Studies for the New Democratic Era, eds. Ruth Rubio-Marín and Helen Irving (Cambridge: Cambridge University Press, 2019), 283, 290, 298.

164 Article 51A, on fundamental duties, directs citizens to renounce practices derogatory to the dignity of women but was not part of the original 1950 constitution. Instead, it was introduced by the Forty-Second Amendment Act in 1976. Interestingly, provision 51A (e) of the amendment includes the duty to “promote harmony and the spirit of common brotherhood amongst all the people of India transcending religious, linguistic and regional or sectional diversities.” The term brotherhood, in connection with the duty to “renounce practices derogatory to the dignity of women,” seems to refer to the fact that it falls on men (tied as brothers) to run India’s public affairs. When read together, the two duties seem to recognize that the challenge of respecting women’s dignity is one shared by the various cultural and religious groups reflecting women’s overall subordinate position. Notice also that the preamble orientates the constitution toward certain values that include justice, liberty, equality, and “fraternity.”

165 See Ratna Kapur and Brenda Cossman, “On Women, Equality and the Constitution: Through the Looking Glass of Feminism,” National Law School Journal 1 (1993) and Gautam Bhatia, The Transformative Constitution: A Radical Biography in Nine Acts (New Delhi: HarperCollins, 2019), 911.

166 See Yusuf Abdul Aziz v. State of Bombay, AIR 1954 SC 321. Section 497 of the colonial Indian Code of Criminal Procedure (Act XLV of 1860) only punished the male adulterer and only allowed the husband of the female partner to bring charges. The court called on article 15 (3) and allowed for the enactment of “special provisions” for women in the understanding that the adultery law provided a safe harbor for women. The Yusuf Abdul Aziz case was upheld by the Supreme Court up to three times. See Sowmithri Vishnu v. Union of India, AIR 1985 SC 1618; V. Revathi v. Union of India, AIR 1988 SC 835; and W. Kalyani v. State, (2012) 1 SCC 358. In the 1988 decision, the court’s reasoning left no room for interpretation: “The community punishes the ‘outsider’ who breaks into the matrimonial home and occasions the violation of the sanctity of the matrimonial tie by developing an illicit relationship with one of the spouses subject to the rider that the erring ‘man’ alone can be punished and not the erring woman.” The provision was only struck down in 2018, after the court came to the conclusion that such legislation conferred a dubious “benefit” on women, given that it was premised on the understanding of women’s sexual passivity. The concurring opinion of Justice Malhotra noted that “special provisions” for women could no longer be justified under a protective-patriarchal logic, whereas that of Justice Dhananjaya Yeshwant Chandrachud refers to the challenged provision as “grounded in paternalism, solicitous of patriarchal values,” arguing that it “subjugates the woman to a position where the law disregards her sexuality.” See Joseph Shine v. Union of India, AIR 2018 SC 4898.

167 See R. S. Singh v. State of Punjab, AIR 1972 Punjab and Haryana 117, where a host of assumptions about gender roles – from differing physical strength to the performance of “maternal functions” – were invoked to uphold an order disqualifying women from being appointed as superintendents in men’s jails.

168 See Air India v. Nargesh Meerza, AIR 1981 SC 1829. The rule forced an air hostess to retire on the grounds of marriage, first pregnancy, or thirty-five years of age, whichever occurred earlier. The Supreme Court upheld, modified, and struck these rules down in parts. In the case of marriage, it considered that the forced retirement of the married air hostesses within four years of joining the service was reasonable, as it boosted the family planning program and the success of marriage, which were considered to be the specific responsibility of women. See Bhatia, The Transformative Constitution, 10–12.

169 See Shreya Atrey and Gautam Bhatia, “In Search of Principle: Seventy Years of Gender Jurisprudence in India,” in Gender, Sexuality and Constitutionalism in Asia, eds. Wen-Chen Chang et al. (Oxford: Hart Publishing, forthcoming).

170 See State of Bombay v. Narasu Appa Mali, AIR 1952 Bom 84, upholding a provincial law that discriminated against daughters in inheritance, observing that uncodified “personal laws” were not subject to constitutional scrutiny.

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