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Constitutionalism affirms the idea that democracy should not lead to the violation of human rights or the oppression of minorities. This book aims to explore the relationship between constitutional law and feminism. The contributors offer a spectrum of approaches and the analysis is set across a wide range of topics, including both familiar ones like reproductive rights and marital status, and emerging issues such as a new societal approach to household labor and participation of women in constitutional discussions online. The book is divided into six parts: I) feminism as a challenge to constitutional theory; II) feminism and judging; III) feminism, democracy, and political participation; IV) the constitutionalism of reproductive rights; V) women's rights, multiculturalism, and diversity; and VI) women between secularism and religion.
What is feminist constitutionalism? Basically, it is the project of rethinking constitutional law in a manner that addresses and reflects feminist thought and experience. We use this term in contrast with the “constitutional law and” approach – constitutional law and gender or constitutional law and feminist theory – because we aspire to explore the relationship between constitutional law and feminism by examining, challenging, and redefining the very idea of constitutionalism from a feminist perspective. Feminist constitutionalism demands that we not only revisit classical topics from new perspectives but, more importantly, pose new questions, introduce new topics, and take responsibility for changing the focus of constitutional discussion and debate. We embrace the questions raised by studies of gender or feminism “and” constitutional law even as we urge scholars to move beyond them.
We acknowledge the importance of constitutional law for feminist analysis. Constitutional law is foundational to most of the world's legal systems. It shapes fundamental assumptions regarding citizenship, rights, and responsibilities. Feminists who critique law must understand that legal systems cannot really be transformed without addressing their constitutional foundations. Historically, the second-class status of women in law derived from constitutional structures and assumptions. For instance, in the Anglo-American countries – Great Britain, the United States of America, and Canada – women were denied the right to vote in the nineteenth and early twentieth centuries in part because constitutional norms were phrased in masculine terminology (e.g., “men,” “he”) or given a gendered interpretation (e.g., “persons” as referring to “men”).
Polygamy poses a dilemma for feminist constitutionalism. Canada offers the perfect crucible for understanding this dilemma. Not only is polygamy a crime but also Canada justifies criminalization on the grounds of protecting women and children, thereby attracting the attention and concern of feminists. For their part, constitutionalists will address polygamy because the constitutionality of criminalizing it has just been referred to the courts. However, feminists and constitutionalists will differ over the appropriate outcome for this case. Because most feminists believe polygamy is harmful to women, they will support continued criminalization. By definition, on the other hand, constitutionalists advocate limiting the powers of liberal states, meaning they will seek decriminalization. In sum, the issue of de/criminalizing polygamy polarizes feminists and constitutionalists, creating a dilemma for those who choose to subscribe to feminist constitutionalism.
Fortunately, feminist constitutionalism is a sufficiently novel concept that it is still under construction. In Canada, the relationship between feminism and constitutionalism has gone through several stages over the past quarter century. Constitutional scholar and feminist Donna Greschner typified the preliminary stage when she posed this provocative question: “Can constitutions be for women too?” The second stage consisted of many feminist and constitutional scholars – indeed, too many to mention individually by name – applying feminist analysis to various issues of constitutional law. Thus scholarly research progressed from women to feminism and from constitutions to constitutionalism during these first two stages. For the current state, what remains is to elaborate the relationship between these “isms.”
Must feminists support entrenchment of sex equality? Although an affirmative response might appear self-evident, recent events in the Canadian province of Quebec might give feminists pause. The issue was not whether the province should entrench its first sex equality provision; the Quebec Charter of Human Rights and Freedoms (“Quebec Charter”) prohibited sex discrimination from its inception in 1975. Tensions arose among Quebec feminists over the proposal to add a second sex equality provision to the Quebec Charter. They did not articulate their tensions in terms of competing visions of sex equality: discrimination versus equality. Instead, the dominant theme was conflicting constitutional rights: sex equality versus religious freedom. Accordingly, an analysis of Quebec's experience may be instructive for feminists who are interested in issues of constitutional design in other jurisdictions.
In what follows I describe the constitutional setting, the origins of the proposed amendment to the Quebec Charter, and the tensions it exposed among feminists in Quebec. Although they disagreed over the all-or-nothing question of whether to entrench the second sex equality provision, I approach the issue of constitutional design from a different perspective, namely that sex equality provisions serve multiple functions. I argue that Ayelet Shachar's theory of joint governance illuminates the identity of feminists who are not served by Quebec's proposal, because they require a sex equality provision that protects intersectionality. After reviewing how such a provision might be designed, I suggest nevertheless that this second function could be performed by Quebec's amendment.
Must feminists identify as secular citizens? Conceptualizing citizenship as secular is a recent phenomenon. There is no reason to advert to the secularism of liberal citizens because distinguishing secularism from religion and affirming secularism are two defining features of liberal states. However, the revitalization of religion in the public sphere portends a postsecular state in which some citizens will opt to participate as religious adherents. Recently, the Canadian province of Ontario appeared to become postsecular when some religious adherents initiated a political campaign for recognition of Sharia family arbitration. Since feminists participated actively in the ensuing political deliberations, my objective in this chapter is to identify them and to explore the implications of postsecularism for their citizenship.
Theories of citizenship abound. However, one of the few scholars to theorize postsecular citizenship is Jürgen Habermas. According to Habermas, the postsecular state is constituted by religious lobbyists and their secular opponents. Because the advocates of Sharia family arbitration met his criteria for religious citizenship, I focus on their secular opponents, who were mainly feminists. The debate between these religious citizens and secular feminists resembled the deliberations that Habermas would attribute to a postsecular state. Presumably he would also find the outcome of this debate – Ontario imposed a ban on all faith-based family arbitrations – consistent with postsecularism.
This outcome did not please some religious citizens, who threaten to challenge its constitutionality by invoking their guarantee of religious freedom under the Canadian Charter of Rights and Freedoms.
Women around the world increasingly resort to constitutional litigation to resolve controversies involving gender issues. This litigation has involved claims for political participation, freedom from discrimination and violence, sexual and reproductive rights, employment and civic rights, matrimonial and familial autonomy, as well as other social and economic rights. For the most part, constitutional law scholars have analyzed this jurisprudence doctrinally, confining their research mainly to individual flashpoint issues such as abortion or affirmative action. Such studies are usually framed by national boundaries; and, when comparative, their reach is often limited to a small number of countries sharing the same legal tradition. This explains the need for a feminist analysis of constitutional jurisprudence in which gender becomes the focal point and for a broader comparative constitutional law approach that encompasses both of the world's major legal traditions. Those are the focal points of this book.
Not long ago a feminist constitutional law scholar asked: “Can constitutions be for women too”? Cognizant of the dangers of overgeneralizing about women's experiences and concerns, she was cautious about responding affirmatively. Nevertheless, her message was clear. Although women may be un-, or under-, represented among the ranks of those who draft domestic constitutions, we are not entirely without constitutional agency. Whether constitutional language adverts or not to women, we still advance claims for constitutional rights.