"Judicial restraint" chez le Conseil

Today the Conseil constitutionnel rejected a challenge to French law that prohibits same-sex marriage.
Plaintiffs identified only as Corinne C. et Sophie H. had contended that Articles 75 and 144 of the Code Civil (in English here) -- each of which designates that the couple to be married will be compsed of a man and a woman -- denied them rights and liberties guaranteed by the French Constitution.
Invoked was Article 6 of the 1789 Declaration of the Rights of Man and the Citizen (available here in the original French), which, in English translation, sets out the principle of equality:

Law is the expression of the general will. Every citizen has a right to participate personally, or through his representative, in its foundation. It must be the same for all, whether it protects or punishes. All citizens, being equal in the eyes of the law, are equally eligible to all dignities and to all public positions and occupations, according to their abilities, and without distinction except that of their virtues and talents.

The 6-man, 2-woman Conseil (prior posts here, here, and here) articulated as its basis for sustaining the ban on same-sex marriage a structural / separation-of-powers / judicial restraint argument. It's an argument that American constitutionalists will find rather familiar.
Pivotal was ¶9 of the 11-paragraph judgment styled Mme Corinne C. et autre [Interdiction du mariage entre personnes de même sexe]. Per loose translation by this 'Grrl, ¶9 repeated the gist of Article 6 quoted above, then continued with additional considerations:

► The principle of equality is not contravened by legislation that regulates different situations in different fashions, nor by certain inequalities adopted in the general interest, provided that the resulting difference in treatment bears a direct relationship to the goal underlying the legislation;
► In maintaining the principle according to which marriage is the union of a man and a woman, the legislature, exercising power granted by Article 34 of the Constitution, has deemed that the difference of situation between same-sex and opposite-sex couples can justify different family law rules;
► It is not for the Conseil constitutionnel to substitute its judgment for that of the legislator respecting the nature of this difference of situation;
► For these reasons, the complaint is dismissed.

With that, it would seem, French marriage-equality advocates must move chez le Parlement.

Intersectionality and the U.N. Special Rapporteur on Violence Against Women

The United Nations Special Rapporteur on Violence Against Women, Rashida Manjoo, will present a thematic report to the Human Rights Council in June 2011. Manjoo’s report will focus on intersectional forms of discrimination in the context of violence against women. Manjoo, who has held the appointment of Special Rapporteur since 2009, comes to the office with impressive credentials from her years as an advocate of the High Court of South Africa, as the former South African Parliamentary Commissioner of the Commission on Gender Equality, and as an accomplished activist focusing on violence against women within South Africa.
The Special Rapporteur should be applauded for undertaking the research to produce a report on intersectionality and violence and to bring it to the attention of the Human Rights Council. Not since the World Conference Against Racism, Racial Discrimination, Xenophobia, and Related Intolerance, has the Special Rapporteur’s office engaged with issues of intersectionality in such a meaningful way. In 2001, the then-Special Rapporteur, Radhika Coomaraswamy, issued a report in preparation for the World Conference that was important in challenging the U.N.’s historical tendency to compartmentalize human rights abuses as either the result of gender discrimination or racial discrimination -- but not both. In the past, I have critiqued the U.N. human rights treaty bodies’ tendency to neatly compartmentalize forms of discrimination rather than explore their intersections. I am encouraged to see the Special Rapporteur’s office undertake to study the myriad ways in which women are targeted for violence based not only on gender but also on their membership in ethnic, religious, sexual, and other minority communities.

On August 9

On this day in ...
... 1909, Margaret Battye (left) was born in Subiaco, Australia, into a family of librarians. One of 4 women to receive her law degree from the University of Western Australia in the early 1930s, she was admitted to the bar in 1933. She and another graduate, Mary Hartney, then established the 1st firm of women lawyers in that state. Battye won her 1st case -- and became the 1st woman to represent a client before the bar of that state. Thirty years before any such law would be passed, Battye drafted legislation aimed at ending discrimination against women in Australia. The year was 1949; that same year she died from a thyroid illness, at age 40.

(Prior August 9 posts are here, here, and here.)

Guest Blogger: Yvonne McDermott

It's IntLawGrrls' great pleasure to welcome Yvonne McDermott (left) as today's guest blogger.
Yvonne is a Ph.D. candidate and doctoral research fellow at the Irish Centre for Human Rights, National University of Ireland-Galway, where she is also a Lecturer on Children's Rights. Her research focuses on due process in international criminal proceedings, and her guest post below examines the jurisprudential doctrine of abuse of process, an ongoing issue in 3 International Criminal Court cases now proceeding against defendants from the Democratic Republic of Congo.
Yvonne holds a Diploma in Irish (Gaeilge), a Bachelor of Corporate Law and a Bachelor of Laws from the National University of Ireland, Galway. In 2008, Yvonne earned an LL.M. cum laude in Public International Law from Leiden University in the Netherlands. Her scholarship includes the journal article Victims and International Law: Remedies in the Courtroom (2009), for which last year she was named the inaugural recipient of the Böhler Franken Koppe Wijngaarden advocaten Hague Academic Coalition Award for Young Professionals. Yvonne is the Managing Editor of the Oxford Reports in International Criminal Law.
Yvonne chooses to dedicate her post to 2 Irish women. Both "are perhaps better known for their associations with famous men," she writes, but both "deserve to be recognised in their own right." Yvonne continues:

Mary Ann McCracken [left; 1770-1886], the sister of executed United Irishman Henry Joy McCracken, was born in Belfast. She too was committed to social reform, and was a dedicated philanthropist and activist, committed to helping the poor of Belfast,
pioneering for equal rights for women and the abolition of slavery. There are descriptions of her at the age of 88 handing out leaflets at the docks of Belfast to those heading for the southern ports of the United States, where slavery was still practiced.
Maud Gonne [below right; 1866-1953] was born in England but her legacy is cemented as a pivotal player in the Irish struggle for independence. She was particularly involved in countering evictions and in famine relief in counties Connaught in the late 19th century. She was the founder of Inghinidhe na hÉireann (Daughters of Ireland), an Irish nationalist feminist organisation, in 1900, and was fiercely devoted to the promotion and preservation of Irish culture through the arts. In spite of her own achievements, Maud Gonne is often celebrated as the muse of William Butler Yeats and the mother of diplomat and Nobel Peace Prize winner, Seán MacBride.

Today Gonne (prior post) and McCracken join the foremothers' list just below our "visiting from..." map in the righthand column -- and thus also join what Yvonne aptly calls "the wonderful Mná na hÉireann so honoured on this blog before me." The "Women of Ireland" to whom she refers are foremothers Grace O'Malley/Gráinne Ní Mháille, Eva Gore-Booth, Mary Harris "Mother" Jones, Eibhlín Dhubh Ní Chonaill, Hanna Sheehy Skeffington, and Constance Markiewicz.

Heartfelt welcome!

Gender equality & the G-20bis

This year's official photo from the G-20 summit, held this past weekend in Toronto, Canada, looks pretty much like last year's from London, England: there's German Chancellor Angela Merkel in orange, Argentinian President Cristina Fernández de Kirchner in white, and standing 2 rows behind her, Gloria Macapagal-Arroyo, till tomorrow the President of the Philippines. Et alia. Another G-20 country now also has a woman leader, but Julia Gillard, Prime Minister only since Friday, sent Australia's Treasurer, Wayne Swan (top middle).

'Nuff said

(Taking context-optional note of thought-provoking quotes)

[W]omen now outnumber men applying to and graduating from college -- so much so that it appears some colleges are giving male applicants an admissions boost. As a result, the U.S. Commission on Civil Rights is examining whether colleges are engaging in widespread discrimination against women in an effort to balance their male and female populations.

-- Los Angeles Times editorial on "Colleges' gender gap," which includes details on developments at institutions of higher education throughout the United States. Theories on the "why" behind the male deficit abound; the editorial concludes:

There may be no one reason -- or solution. But figuring out ways to help boys achieve in school is a better response to the gender gap than making it easier for them to get into college later.

'Nuff said

(Taking context-optional note of thought-provoking quotes)

The Equal Rights Amendment will be resurrected, the U.S. Supreme Court will follow California's lead in holding gender to be a suspect classification, and men will be flattered when told they think just like a woman.

-- Drucilla S. Ramey, Dean of Golden Gate University School of Law, San Francisco, offering for a California Lawyer article her prediction of legal trends in 2010.

On December 5

On this day in ...
... 1979 (30 years ago today), the leadership of the Church of Jesus Christ of the Latter-day Saints, known commonly as the Mormon Church, excommunicated Sonia Johnson (right) -- then a 43-year-old housewife from Sterling, Virginia, the mother of 4 children, and a 5th-generation Mormon -- on account of "her outspoken advocacy" of the Equal Rights Amendment. She would go on to run for the U.S. Presidency in 1984, winning 72,161 votes, or 0.08% of all ballots cast nationwide. Johnson later divorced, and according to a recent report runs a feminist lodge in New Mexico. As for the ERA, in July it was reintroduced into the House of Representatives. (photo credit)

(Prior December 5 posts are here and here.)

Equality scorecard: Canada

(IntLawGrrls today welcomes alumna Gay McDougall, who guest posts on her recent 2-week visit to Canada in her capacity as U.N. Independent Expert on Minorities, during which she examined compliance with instrument such as the Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities)

Canada is rightly proud of its richly diverse society, including citizens with over 200 ethnic backgrounds, numerous languages, religions and cultural practices. Many identify themselves as African and Caribbean Canadians, Arab and Asian Canadians; people of colour and religious minorities. These persons generally described Canada as a society open to and accepting of cultural, religious and linguistic differences, where they can express their identities, speak their languages and practice their faiths freely and without hindrance. (credit for photo of Toronto neighborhood) Canada was a leader among nations in fashioning a state policy of multiculturalism.
However, achieving a truly inclusive society requires constant vigilance. As I toured Canada members of various communities discussed with me significant and persistent problems that they face in their lives as persons belonging to ethnic, religious and linguistic minorities, as people of colour or of particular religious beliefs. Many felt that the government had failed to respond adequately to their problems or to devise meaningful solutions, leaving them and their communities feeling discriminated against, neglected or as second class citizens.
Concerns included:
► Demographics. Although Statistics Canada has done excellent work, demographics are changing so rapidly that there are new demands for deeper levels of disaggregation to keep pace with shifts in the economic and social status of specific minority communities. African Canadians in particular felt that current methods lead inevitably to neglect of their specific identities and situations. In numerous discussions with government officials I had a feeling of constant confusion about what groups were being referred to -- officials talked about “immigrants”, “visible minorities” and “cultural communities” in ways that often seemed inter-changeable and overlapping. The word “race” was almost never used; almost as if it was being deliberately avoided. Yet, I came to understand that issues of race still have salience in this society.
► Poverty. Both federal and provincial governments acknowledged to me that poverty is a problem disproportionately faced by people of colour including African Canadian and specific Asian Canadian communities. Poverty alleviation programmes in Canada must be holistic and targeted towards racialized communities.
► Education. Members of African and some Asian Canadian communities, in particular, feared that their children are having negative experiences in public schools. Drop-out rates are particularly high among boys from these communities. Parents and community leaders described approaches to education that do not take into account their different cultures of learning, curriculum and textbooks that ignore their histories and contributions to Canadian society and a gross under-representation of minorities in the teaching and school administrative staff. Clearly there are examples of good practices and projects. But, it is vital for Canada’s future that more is done.
Equally, for some minority communities, including some sectors of the Asian Canadian and immigrant community, consistently higher than average educational achievements for young people do not translate into access to professional and skilled employment and wages commensurate with their educational outcomes.
► Employment. Income levels generally are significantly lower for minorities, unemployment rates are higher and minorities are disproportionately living in the poorest neighbourhoods and in social housing with relatively poor access to services. Standards and requirements must be better enforced and penalties must be imposed to ensure that Canada’s workplaces, both public and private, truly reflect the diversity present in society and live up to the promise of equality. Government must lead by example of robust efforts and measurable achievements in recruiting, retaining and promoting minorities to senior roles in the public service, ministries and departments.
► Underemployment. There is a deep level of frustration among minority communities that highly qualified and skilled workers have been encouraged to migrate to Canada, only to find on their arrival that their qualifications are not recognized at the provincial level. They are unable to gain employment in their former professions despite critical shortages, including of doctors and nurses in some regions. The cliché of ‘doctors driving taxi cabs’ resonates as reality for many minority professionals in Canada. Effective solutions should be put in place as a matter of urgency.
► Political participation. At the federal, provincial and municipal levels minorities are extremely poorly represented in political structures and institutions in Canada. Minorities themselves must be more proactive in their own engagement and participation in political processes. However more must be done to ensure that minorities are empowered to do so.
► Policing. Every community I talked with raised serious issues of policing. The concerns included racial profiling as a systemic practice, over-policing of some communities in which minorities form a large percentage of the population and disturbing allegations of excessive use of force leading to deaths particularly of young Black males. Minorities feel that the justice system is failing them and that mechanisms of redress, including Human Rights Commissions are inaccessible, underfunded and under threat. It is essential that investigations into serious allegations of police misconduct are carried out by bodies that are perceived by the communities to be independent and that mechanisms of civilian oversight are established.
► Treatment post-9/11. Members of the Muslim communities reported that they feel there is certainly freedom to practice their religion in Canada. (credit for photo of Ottawa mosque) Yet government policies post-9/11 have made them feel targeted, profiled and harassed. Muslim and Arab communities described to me deep anxiety and fear. They are concerned about racial profiling and the unsubstantiated use of Security Certificates. They perceive they have a second-class citizenship as compared to non-Muslim Canadians when they are abroad and require the support and assistance of the Canadian authorities and consular services. Steps must be taken to address these concerns.
► Human rights and federalism. Canada’s Constitution recognizes the authority of provincial governments in such fields as education, employment, the delivery of health care, social housing, and social services. The Federal government of Canada, however, has the unavoidable responsibility for ensuring that Canada meets its international obligations in all fields of human rights. The current practice has created an uneven and unclear enforcement system that varies between provinces. Officials must work towards stronger mechanisms of cooperation to guarantee consistent enforcement with respect to obligations under the provisions of international treaties to which Canada is a party, particularly in the area of non-discrimination and equality and the implementation of the rights of persons belonging to minority groups. (credit for photo of Toronto neighborhood)
These are preliminary observations. My findings and recommendations will be fully developed in my report to the U.N. Human Rights Council next March.

A strategy of gender fundamentalism in Afghanistan?

(It's our great pleasure to welcome IntLawGrrls alumna Penelope Andrews, who contributes this guest post on a critical issue also addressed in today's post just below it)

As President Barack Obama prepares to give a speech this Tuesday on his administration's strategy going forward in Afghanistan, it's time to ask what role the cause of women in Afghanistan should play in reaching this decision. It's not evident that any of President Obama's advisors are giving any weight to the cause of women as a relevant factor in determining future strategy in Afghanistan.

Eight years is a long time for the prosecution of a major international war. It is therefore appropriate to ask:

What has been achieved in the cause for women and their status in Afghanistan's life?

Undeniably, there have been a few notable gains, such as the increasing number of girls who now attend school, and the presence of some female parliamentarians. But for the most part the fundamental gains required for Afghan women to achieve full citizenship have not transpired. Women continue to remain hostage to President Hamid Karzai’s equivocation and compromises -- as well as to the authoritarian traditions of warlords who support, and are supported by, President Karzai.

Afghan women are caught up in violence from all sides:

► from U.S. and NATO forces who drop bombs on them or raid their homes and detain indefinitely family members;

► to an unrelenting reign of terror from the Taliban groups who persist in their strategy of denying women basic rights and who act to undo the few gains and rights that Afghan women have in the interim obtained or may gain;
► to violence committed by warlords inflicting harsh punishments on women and seeking to confine them to traditional roles.

When it comes to women, the war has been another disaster, and has obscured both the continuing denial of their civil and political rights and the deleterious impact of that denial. Women's hopes, raised during the early days of the invasion, have turned into a poignant despair. With the warlords and the Taliban controlling about ninety percent of Afghanistan, it's not surprising to hear, as one notable Afghan women activist put it, that the invasion has led to “no positive change” regarding the situation of women. (credit for Office of U.N. High Commissioner of Refugees photo of Afghan women)

Given these conditions, a key issue is to provide for the basic rights of women. Given past experience, there is no reason to believe that sending more troops will secure this goal. Can this aim be achieved through negotiations and reduction of violence? That is where the focus should be, not on adding more troops to wage war. Moreover, securing the rights of women is probably the best way to aid Afghanistan's indigenous democracy.

To be sure, the Taliban in the past has been chronically against women's rights, but could the United Nations broker an agreement whereby the war would be ended in exchange for a guarantee by the Taliban and the Karzai government to respect and promote women's rights?What exactly would this entail? First, the international community, through the United Nations, should adopt a policy akin to a zero tolerance approach to the pursuit of gender equality and the eradication of violence against women, a gender fundamentalism if you will. This means that women’s equality, along with the campaign to provide democracy, would be the raison d’être for international engagement.

This must be the commitment of the international community. The role and status of women would become an important measure of the achievement of democracy in Afghanistan, perhaps a harbinger of democracy.

(A longer version of this post appears at this month's issue of Asian Currents, the e-bulletin of the Asian Studies Association of Australia, the country where Penny's taken up a Chair in Law at La Trobe University)

'Nuff said

(Taking context-optional note of thought-provoking quotes)

'There is a void in the English language .... Every one has been put in an embrassing position by ignorance of the status of some woman. To call a maiden Mrs. is only a shade worse than to insult a matron with the inferior title Miss. Yet it is not always easy to know the facts.'

--unsigned article published on November 10, 1901, in The Sunday Republican of Springfield, Massachusetts, and quoted in etymologist Ben Zimmer's recent column on the origin of the honorific "Ms." According to Zimmer, the term began not as the icon of feminism it's become (Exhibit A: the magazine at right), but rather as a simple (albeit not-clear-how-to-pronounce) matter "of simple etiquette and expediency."

On November 11

On this day in ...
... 1839 (170 years ago today), in the town of Lexington, the Virginia Military Institute opened its doors to cadets whom it housed in an old arsenal building. For more than a century it was a public institution where men studied for bachelor's degrees. That changed after issuance of United States v. Virginia (1996), in which the U.S. Supreme Court, in an opinion by Justice Ruth Bader Ginsburg, held that the single-sex admissions policy violated the Constitution's Equal Protection Clause. (credit for 2008 AP photo, by Don Peterson, of then-Vice President Dick Cheney at VMI)

(Prior November 11 posts are here and here.)

'Nuff said

(Taking context-optional note of thought-provoking quotes)

... 67 percent of bloggers are men—up a little from the year before.
That's a worse gender imbalance than in American newsrooms, which is saying something.

-- Mother Jones' Marian Wang (left), in "Where Are All the Lady Bloggers?"

Answer:

Here.

'Nuff said

(Taking context-optional note of thought-provoking quotes)

The early 1970s was a limiting time for women, but it was also, perhaps, a hopeful time. There was definitely a feeling in the air that women’s lives were changing in a positive way. There was a sense that everything was possible, that life for women was getting better, that if things hadn’t yet come together as well as they should have, they inevitably would. Down the line. Like, today.
Life for women has not come together.

-- The New York Times' Judith Warner (above left), in "When We’re Equal, We’ll Be Happy," an excellent consideration of the "unhappy" state of the modern American woman and an entrée to related works of interest, including A Woman’s Nation Changes Everything, a just-released report by Maria Shriver and the Center for American Progress, edited by Heather Boushey and Ann O'Leary. (Also promising, though not mentioned by Warner: Gail Collins' new book When Everything Changed: The Amazing Journey of American Women From 1960 to the Present, reviewed here. And see a related op-ed, in today's NYT, here.)

(credit for photo by Jean-Louis Atlan; hat tip to Evelyn A. Lewis)

The Ionesco Awards 2009

It's been two years since we've nominated any government officials for the Ionesco Awards, but this particular piece of news takes the cake of absurdity. Mara Carfagna, Italy's Equal Opportunities Minister, has called in her support of a bill that would ban the wearing of the burqa in Italy. Italian Prime Minister Berlusconi appointed Carfagna to her post in May 2008; her qualifications, beyond an undergraduate degree in law, include participation in the Miss Italia contest, acting, and topless modeling. A self-proclaimed "anti-feminist", Carfagna introduced last year a law criminalizing street prostitution, saying "I don't understand how someone can sell their body in the street for money." As the founder of the Italian Committee for the Rights of Prostitutes astutely noted, Carfagna's position was astounding given her history of earning money by posing nude.
(IntLawGrrl Diane Marie Amann's 2008 post on the appointment of Carfagna and other women to his Cabinet foreshadowed these developments.)
Ironically, in her position as Equal Opportunities Minister, Carfagna has also opposed gay pride marches, claiming that LGBT folks no longer suffer discrimination in Italy and noting her opposition to gay marriage. So it is particularly interesting now to see her using the language of equal rights to support a ban on the burqa and the niqab, which she claims are "symbols of the submission of women and obstacles to integration." Carfagna adds, "There is no room for traditions, mentalities and religions where women are treated as inferiors." In other words, Carfagna's vision of equality protects traditions and mentalities that ask women to show as much skin as possible, but not those that require women to show as little skin as possible. Eugene, we have a winner.

Customary breakthrough

'[T]hat was a breakthrough case. A case that was a leverage to all the women of South Africa. Even abroad.'

So said Phyllia Tinyiko Nwamitwa (left), speaking about a judgment issued a year ago today. In it the Constitutional Court of South Africa (logo below right) upheld a tribal decision to name her Hosi Nwamitwa II, the 1st woman chief of her Valoyi people in memory. (photo credit)
The decision had been made by her uncle, to whom the title of chief shifted in 1968, when the then-ruling chief, or hosi, her father, had died without a male heir. Her uncle chose to restore her to the line of succession in light of the 1994 adoption of South Africa's post-apartheid Constitution, which guarantees gender equality. Upon the uncle's death his son, her cousin, sued, and -- in last year's judgment in Tinyiko Lwandhlamuni Philla Nwamitwa Shilubana et al. v. Sidwell Nwamita -- lost. "[T]he law and practice of customary leadership" is to be exercised in accord "with the Constitution," Justice Johann van der Westhuizen wrote in ¶ 75, on behalf of a unanimous court.
And so, as detailed in this Washington Post profile by Karin Brulliard, it is Phyllia Tinyiko Nwamitwa, a 69-year-old former Member of Parliament, who is now hearing disputes within the 70,000-member tribe and otherwise ruling as hosi. She "is one of the very few women among South Africa's 750 or so traditional leaders."

Gender equality & the G-20

'Nuff said.

(Photo credit) (And hat tip to IntLawGrrl Stephanie Farrior, who e-mailed this while in transit.)

Equal Pay on the way ? Fight on

On Thursday, President Obama signed his first piece of legislation: the Lilly Ledbetter Fair Pay Act (photo credit, Ledbetter looking over the President's shoulder). The law overturns the Supreme Court 2007 ruling in Ledbetter v Goodyear, in which the Court held that an employee could not bring an action for wage discrimination more than 180 days after the first act of discrimination. Ledbetter had worked for Goodyear for 19 years when, several months before her retirement in 1998, she was tipped off by anonymous note that she was being paid less than men who held the same job. Unfortunately, this is not surprising. According to my ACLU e-newsletter, despite passage of the Equal Pay Act more than 45 years ago, (white) women currently average only 78 cents for every dollar men earn. Women of color earn even less. Even more unfortunately, the new law won't change this: the Lilly Ledbetter Fair Pay Act will not grant fair pay, but restore the principle that an employee's right to take action to put an end to discrimination lasts as long as the discrimination continues by providing that each discriminatory paycheck issued resets the 180-day statute of limitations.
The ACLU therefore recommends we push for passage of the Paycheck Fairness Act, which will close Equal Pay Act loopholes and strengthen its weak remedies. It will also strengthen outreach, education and enforcement efforts and prohibit retaliation against employees who ask about their employers' wage practices.

On January 23

On this day in ...

... 1849 (160 years ago today), as described on the website of the U.S. National Library of Medicine:

On the morning of Tuesday, January 23, 1849, a young woman ascended the platform of the Presbyterian church in Geneva, N.Y., and received from the hands of the President of Geneva Medical College a diploma conferring upon her the degree of Doctor of Medicine. Thus, after many years of determined effort, Elizabeth Blackwell became the first woman to complete a course of study at a medical college and receive the M.D. degree.

Blackwell, who'd been born February 3, 1821, in England, was featured as Immigrant of the Day in this ImmigrationProf Blog post. (credit for circa 1850 photo of Blackwell)

... 1835, the 1st volume of 1 of the great political travelogues of all times, De la démocratie en Amérique, was published in Paris. The author, of course, was the Frenchman Alexis de Tocqueville (right), who'd go on to publish a 2d volume in 1840. Known to English speakers as Democracy in America, it is a chief component of a lifework "largely devoted to reconciling the principles of equality and freedom."

Still married after all these proceedings

The other shoe has finally dropped: the Court of Appeals in Douai (France) has ruled that the couple whose marriage was annulled because the bride was not a virgin is still married. As you may recall, the young bride on her wedding night admitted she was not a virgin and was taken back to her parents by her displeased father-in-law and husband, who then won an annulment on the grounds that he had made a mistake as to the bride's "essential qualities." Initially Rachida Dati (left), the Minister of Justice who herself had had an early marriage annuled, defended the annulment as protecting the parties by avoiding divorce, as divorced Muslim women are frowned upon. While protecting the parties interests is indeed one of law's essential functions, many of us quibble with the lower court's acceptance of virginity as an essential bridal quality. The Court of Appeals agrees with us:

a lie that does not concern an essential quality is not a valid basis for annuling a marriage...This is particularly true when the alleged lie concerns the past love life of the future wife and her virginity, which is not an essential quality as its absence has no effect on married life.

I must confess this ruling did not surprise me, given all the hoopla. But I've just been teaching my Introduction to Law students about judicial independence and impartiality and equality before the law and realize that aside from any hoopla or disagreement as to whether or not virginity is an essential bridal quality, there is an issue of equality before the law buried in this case: what non-Muslim couple would be allowed to annul their marriage on such grounds? Indeed, the report of the appellate judgment, unlike reports of the annulment, indicates not that both parties requested the annulment, but that the "roughly 20-year-old" bride only gave in to her "roughly 30-year-old" husband's request for fear of a long, drawn out legal proceeding. Were divorce as easy (ie lawyer/judge-free) in France as it is elsewhere, the bride's interests would have been much better protected than Dati thought they were by annulment on retrograde grounds. As it is, the girl who feared long proceedings is now apparently going to sue for atteinte à la dignité (damage to her dignity).