A Woman's Constitution

Two recent (private) Islamic forums at Melbourne University, in which women attendees were reportedly asked to sit at the back of the hall, have sparked controversy, even reaching an international audience in the World University News. Outrage and disapproval have been directed at the University for its failure to enforce its gender equality policy and to condemn these events. In reply, Vice-Chancellor, Glyn Davis, has offered a defence of the University’s position. First regretting that the University’s policy was not communicated more clearly to the forums’ organisers, he goes on to emphasise that religious freedom was also implicated, and that the imposition of gender equality ‘preferences’ may contravene religious rights. There is no ‘simple calculus’ for deciding which of the two must be absolute, he writes. Religious communities requiring gender separation have a right to worship according to their faith. Australia’s Sex Discrimination Act (1984) is ‘precise’; the prohibition on gender discrimination, he notes, does not affect ‘an act or practice that conforms to the doctrines, tenets or beliefs of that religion.’ Both gender equality and religious freedom are also enshrined in the United Nations’ Universal Declaration of Human Rights.

Rights, as we know very well, ‘collide’. A clash of principles is commonplace, and there are many concrete ways in which religious freedom may conflict with other rights, including gender equality. The controversy in this instance revolved around the practice of dividing people according to sex. Both ‘separation’ and ‘segregation’ have been used to describe what happened in the forums. Surely they are not the same thing.

We need to consider what is at stake. Does a practice reinforce women’s subordination? Does it diminish women’s life-chances? Does it stunt women’s growth as human beings? Does punishment (formal or informal) follow contravention of the practice? The 'calculus' may not be simple, but these are surely the metrics. There are many instances in which gender separation is harmless on such measures. It is absurd to argue that simply sitting among other women, any more than (the standard example) wearing a head scarf, is in itself subordinating. People practice, wear, do, and enjoy all sorts of things that others don’t (I could list dozens, starting with the wearing of six inch high heels), and it is not for those others to say that they are wrong.

But segregation is another thing. It took the United States decades to understand that segregation and equality are incompatible. In the famous 1954 case of Brown v Board of Education of Topeka, the Supreme Court reasoned that segregation had a harmful effect on black Americans, even where separate facilities were offered on an equal footing. The effect, importantly, was not to be measured by objective criteria or findings of tangible harm. Overturning Plessy v Ferguson (1896), which had concluded that ‘separate’ and ‘equal’ were compatible, the Court held that educational segregation generated in African Americans ‘a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely ever to be undone.’ Desegregation was ordered, even for black children who (or whose parents) were comfortable with things as they were. Sixty years later, Brown is a landmark in subtle sociological reasoning. But the fact that, in many instances, black and white Americans still socialise apart from each other and still worship apart from each other does not mean that desegregation has failed. Nor is it, in itself, a token of inequality.

Professor Davis calls for reasoned discussion, but offers critics a stark choice: either to defend enforced gender integration in every facet of life, or to tolerate religious practices, tout court. He comes worryingly close to implying that any practice done in the name of faith should be tolerated, and that expressions of disapproval equate intolerance. He invokes the law, but incompletely; he certainly knows that some religious practices - notwithstanding anti-discrimination law - are criminalised in Australia. He also surely knows that liberalism does not require people to be silent when faced with practices they believe to be harmful. Nor should tolerance (or commercial considerations) mean that religious functions, of any sort, must be permitted in secular institutions.

Professor Davis prioritises religious freedom in the construction of his reply. He might just as easily have reversed the principal and the subordinate value: while the toleration of religious practice is a key value at Melbourne University, he might have said, so is gender equality. History is full of examples where women’s interests have been balanced away or sacrificed to other interests (usually men's), commonly styled as ‘rights’. It is regrettable that both in law and in social discourse, gender equality does not trump other rights. It is also regrettable that, here, as so often, the women are not invited to speak for themselves.

Professor Davis writes: ‘If those who criticise the university believe no gender segregation is ever acceptable, even among faith communities, let them argue so explicitly – and argue why this is a defensible imposition on personal rights.’ He might have written instead: If women who criticise the university believe no gender segregation is ever acceptable, let them argue so explicitly, and let women who disagree argue with them. Let both sides consider what is actually at stake, and weigh up whether it is indeed segregation .

In my first post, I puzzled over the near-total absence of women in discussions of constitutional originalism. Among other things, I noted that several recent conferences, symposia and edited collections on the subject were hugely, even entirely, dominated by men. And in my conclusion, I inferred that the organisers of these events/publications had failed to notice. I also suggested that any law conference, in which a group of men spoke to an audience of men about the work of men, would be simply inconceivable in Australia. I hope I am right about the latter, but my conclusion about North American efforts was, it seems, wrong. I have since heard, separately, from two (unassociated, non-American) male academics who were implicated in my ‘charge’ of neglect. They have assured me that the missing gender was noticed, and that many efforts were made to involve women in the relevant events. But the result was, as the French say, chou blanc. I was pleased to hear about their efforts. I am happy to retract this particular conclusion.

The bigger puzzle still remains. If women were invited, why were they unwilling to take part? There are several suggestions. Let me put these as questions. Does constitutional originalism = American = conservative? In other words, is the subject so closely associated with a particular type of American politics that it has little relevance to women or men outside its borders, and the gender tally is beside the point? Within America, are progressive women so alienated from the politics of originalism that they do not want to take part, even as critics? Does originalism represent American conservatives’ determination to turn back the clock on everything that has been gained since the Constitution’s framing, including women's rights?

Prominent American originalist, Steven G. Calabresi, insists that it doesn’t. In a 2011 article* (co-written with a woman, Julia T. Rickert) he defends an originalist reading of gender equality in the U.S. Constitution, in which the Fourteenth Amendment’s DNA is picked up in the Nineteenth Amendment. The Fourteenth Amendment, the authors maintain, ‘was meant, as an original matter, to forbid class-based legislation and any law that creates a system of caste’; the Nineteenth Amendment’s conferral of voting rights on women acted to generalise their full citizenship and inserted women into the classes to which the Fourteenth Amendment's prohibition on caste applied.

This peculiarly American reasoning is not directly applicable to other constitutions, of course, but Canadian feminists, for example, for whom originalism is at present a non-issue, might one day find it of interest. As their 1982 Charter of Rights and Freedoms grows older, and as the inevitable happens and (baring constitutional disaster) reverence increasingly attaches to the memory of the framers, constitutional change - except by judicial interpretation - will become harder. Originalism might then seem not such a bad idea, especially since there are express original equality commitments to point to in the Charter. Methodologically - whether conservative or progressive – originalism is full of holes, and the holes get bigger the closer one looks. But, politically, if this is what the fight over interpretation is really about, why not use it for good as well as evil?

In the meantime, the efforts of male organisers to get women involved are to be applauded. They should not give up.

*‘Originalism and Sex Discrimination’ (2011) 90 Texas Law Review 1. I couldn’t help noticing that, of the 11 people who are thanked by the authors for their comments and suggestions, one alone is a woman. The article is dedicated equally to USSC Justices Ruth Bader Ginsburg and Antonin Scalia.

Two blogs ago, I observed that the suitability of women to serve as judges on their countries’ highest courts could effectively to be taken for granted these days. I was perhaps a little optimistic. In a recent post on the UK Constitutional Law Group site (11 April), Kate Malleson points out that, of the 15 judges appointed to the UK’s Supreme Court since its opening in 2009, not one has been a woman. She asks: ‘Is the UK the only OECD country that does not have excellent women lawyers fit for [its] highest court?’

There are many lessons to be drawn from this frankly astonishing record.

First, the obvious. The removal of formal discriminatory barriers guarantees nothing. Ninety-four years ago the British Parliament passed the Sex Disqualification (Removal) Act 1919. It stated:

"A person shall not be disqualified by sex or marriage from the exercise of any public function, or from being appointed to or holding any civil or judicial office or post, or from entering or assuming or carrying on any civil profession or vocation …"

Ninety-four years ago! Decades before the European Convention on Human Rights - itself in operation for the last 60 years - committed its members, including Britain, to non-discrimination based on sex. Although women are no longer disqualified from judicial office in Britain, it almost seems as if they are, at least for the highest level. What is the reason?

Malleson mentions the ‘clone’ theory: male members of appointments committees replicate themselves in the choices they make. In my book, Gender and the Constitution (2008), I give this tendency the clunkier name ‘the endogenous recognition rule’: people recognise merit more easily among those who look like themselves.

Endogenous recognition is surely the cause of compositional inertia in many male-dominated institutions. But, if it were the only reason, similar results could be expected in other comparable parts of the world. As we know from Malleson’s post, however, 33 OECD countries have a better record than Britain on women’s senior judicial appointments. Perhaps, despite the evidence of its long history of gender equality laws, Britain is particularly hidebound by tradition. But there is no reason to believe that it stands alone in the developed world as a bastion of sexism, or that the answer to Malleson’s rhetorical question is genuinely yes.

The second lesson follows from the first. Appointments procedures count. The appointment of a judge of the Supreme Court of the United Kingdom is made on the nomination of a specially convened selection committee, consisting of President and Deputy-President of the Court, and members of the Judicial Appointments Commissions of the UK’s component parts. Many critics have pointed to the ‘closed club’ character of this committee, the dominance of men in its membership, and the opaqueness of the process. Open committee hearings, even broadcasts of deliberations on the internet, some say, should be adopted. Would this help?

In Australia, Justices of the High Court are appointed by the federal Attorney-General, following closed consultation with her or his State counterparts and informal inquiries with various law associations. This procedure, frequently criticised for lack of transparency, has still managed to produce three female Justices in a period when Britain’s equivalent has had none. The American procedure, closed at the presidential nomination stage and open at the Senate confirmation stage, has a similar record. Canada, also with three women currently on the Supreme Court, toyed with transparency for a couple of years and had a parliamentary interview stage, but simple appointment on the Prime Minister’s recommendation remains the default. Opaqueness, it seems, is not necessarily the problem.

There are too many variables to produce a clear conclusion: barriers may lie in the appointments procedure, the gender of office holders and appointments committees, the formal qualifications for eligibility to serve as a judge, and the conditions of appointment, tenure and retirement. Add cultural and sociological ingredients. But my bet is, as Kate Malleson says of ‘the unreconstructed working arrangements of the legal profession and the bench … [and] the wider social context of the gendered division of labour around caring responsibilities', that all of these barriers can be found in countries other than Britain.

The critical point (in any country), I would guess, lies at the informal (and necessarily non-transparent) ‘nomination’ stage: the stage when names are first in circulation, when their collection by the appointing officer or body has just begun. If women are encouraged to indicate their willingness to serve, and if others, proactively, are permitted to encourage them, or to nominate on their behalf, then the self-censorship that is still experienced by even the most qualified and meritorious women may be diminished. As I wrote in my book, ‘[f]or reasons that are both historical and enduring, women who are similarly situated to men … still tend to be more reluctant to promote themselves for potential high-level service.’ This observation, I add, came from Margaret Marshall, first woman Chief Justice of the Judicial Supreme Court of Massachusetts.

Finally, claims for gender diversity should not be confused with claims for ethnic diversity. There are many good reasons for wanting ethnic (and cultural) diversity on official bodies, but the case for women’s appointment should stand on its own. The appointment of a male judge from an ethnic minority should not be treated as a trade-off or offered up as the equivalent of a woman’s appointment. Britain’s feminists should feel free to say this. This, after all, is an issue for women around the world. Women should not balk at asserting their simple majoritarian entitlement to serve, just as men do, on any or all decision-making bodies, without waiting in the queue or being required to present a special case for the difference their appointment would make.

There was a reason people queued for days and slept in the snow on the steps of the United States Supreme Court to hear an hour of oral argument in Hollingsworth v Perry and United States v. Windsor, the same-sex marriage cases that were argued this week. It surely wasn't the doctrinal points about whether the parties had standing, or even about what level of equal protection scrutiny should apply to laws that discriminate against gays and lesbians. The consistent reason given by prospective members of the audience was this: they were there because the occasion was 'historic'. They wanted to be witnesses; they wanted to read the justices’ faces; they wanted to know, first hand, whether this would be the kind of landmark case that signals a revolution in judicial thinking (like Brown v Board of Education, or Roe v Wade, or, in the Australian context, Mabo) and maybe also a dramatic (if inevitably-fractured) shift in social norms.

A Supreme Court decision that invalidated California’s Proposition 8 or the federal Defence of Marriage Act (DOMA)– both of which reject same-sex marriage - would go way beyond any matter of doctrine. This was abundantly clear in the argument before the Court. Although counsel on both sides spoke with restraint, the ideas they expressed and the examples they gave reflected the parties' deep emotional investment. Although benefits are at stake, especially in the DOMA case, whether one is accorded or denied the right to marry, is not essentially about benefits or entitlements. Benefits are symbols of something much larger. Marriage – whatever its legal definition – is a profound, even existential matter. To be married is to have a status that the unmarried lack, even if (as in Australia) almost nothing regarding social or financial benefits hangs on it.

Something particular leapt out at me from the transcript of the Hollingsworth argument. It was an exchange between Chief Justice Roberts and Theodore Olsen, Counsel for the challengers to Proposition 8. The Chief Justice commented that, in California, where equal benefits are available to all couples, marriage alone is denied to same-sex partners. So, the argument about marriage, he said, is ‘just about the label’. Mr Olsen replied: ‘The label "marriage" means something ... It is like you were to say [to someone] you can vote, you can travel, but you may not be a citizen. There are certain labels in this country that are very, very critical.’

I thought, of course, of the history of married women’s denaturalization - the once-universal legal practice of stripping citizenship from women who married foreign men (see my post, below, ‘Constitutional Citizenship: The Relevance of Gender’). If citizenship is a ‘label’ it is, indeed, a very, very critical one. At its core, the history of denaturalization opens a window on the value of citizenship itself, as an existential status, and on the impact of its denial or deprivation (what I call an existential injury).

In 1934, the British citizenship equality campaigner, Chrystal Macmillan, wrote that: ‘giving an inferior position to women [regarding citizenship] is a matter of the utmost gravity because of the psychological effect … [It is] founded upon the theory of the subjection of women. To recognise in practice this old idea is a refusal to treat a woman as a citizen in her own person. It is to deny her the status of an adult. Furthermore, it gives recognition to a system which has [not only negative practical effects, but]… spiritual consequences.’

For decades, the international community and most governments were resistant to such arguments. They emphasised that, in many cases, no practical or material disadvantages followed the loss of citizenship. Some, however, were sympathetic, but were unable or unwilling to go the full distance. In some cases, they tried to mitigate the practical impact.

Indeed, Mr Olsen’s analogy has a literal historical counterpart. In the mid-1930s, New Zealand and Australia amended their Nationality Acts (which, as in the rest of the British Commonwealth, conferred British subject status by birth) so that resident British-born women, who had lost their citizenship by marriage, could make a declaration of their desire to retain the political rights they would otherwise have held. They could, indeed, continue to vote (although, perhaps, not travel as freely as they wished), although they were no longer British citizens. But laudable – and popular – as this was, it did not satisfy the desire for true citizenship status, for the right to hold the citizenship of their birth, as other married women did. It was not an alternative to being treated as citizens in their own person.

This is all history now, at least in those countries (including the United States) where marital denaturalization was once practised. But the analogy is still powerful. In the United States in 1915, the Supreme Court rejected Ethel Mackenzie’s constitutional challenge to the law under which she had lost her American citizenship by marrying a British man. The Court asserted both that Congress had power to pass such a law, and that there was national benefit in the traditional assumption that a wife’s identity is merged with that of her husband. In the words of the Court: ‘We concur with counsel that citizenship is of tangible worth, and we sympathise with plaintiff in her desire to retain it and in her earnest assertion of it. But there is involved more than personal considerations … [T]he legislation was urged by conditions of national moment.’

These are strikingly resonating words. The argument heard by the Supreme Court this week is also about whether tradition and purported national interest should override the deeply-held desire of a class of persons for equality in legal status, and whether material or practical equality is its equivalent.

To treat marriage (or citizenship) as simply a formal institution and as exchangeable for functional tokens, is to miss the point. Much more is at stake. All the parties in Hollingsworth and Windsor understand this. Marriage has a deep, non-technical meaning. That is what they are fighting about.

The history of married women’s denaturalization not only offers a historical mirror – a way of understanding how the law and the existential coincide – but also an example of how a legal practice that was once thought immutable for reasons both of tradition and expediency, could eventually be overcome so completely that it is now almost forgotten.

Thirty-two years after Sandra Day O’Connor was appointed to the United States Supreme Court, thirty-one after Bertha Wilson was appointed to the Supreme Court of Canada, and twenty-six after Mary Gaudron was appointed to High Court of Australia, there is no longer any need to defend the suitability of women to serve on their countries’ highest courts. All three First Women had distinguished careers, as their successors are currently doing. Although women Justices remain a numerical minority, three now sit on each of these courts, and in Australia, with a bench of seven, three is as close as you get to parity. Two recent constitutionally-mandated retirements provided the opportunity for the then Australian Attorney-General – herself a woman – to appoint a fourth woman to the High Court and to achieve, with one swoop, an unprecedented numerical majority and a victory for the empowerment of women. The appointments, in the event, were unobjectionable. Two eminently-qualified men. Still, it was disappointing. But why?

There are at least two answers. The first, which is relatively uncontroversial, is that regular, even routinised, appointments of women to positions of authority reflect progress in the societal acceptance of women as decision-makers. Individual women, thus, stand for all women, or at least as harbingers of further progress. Four women out of seven would have recorded a radical shift in Australia’s legal culture since Gaudron took her place in 1987, alone in a masculine world. Still, three is encouraging: not quite a deluge, but not a drop in the ocean either.

The second answer is much more contentious. It is that the life experience of women, different from that of men, will be reflected in their judicial practice. The more the bench is able to understand the full range of experiences in the population, the better justice will be served. Some commentators go further and maintain that women, as such, bring a different perspective to judging, even a different judicial ‘voice.’

Much has been written about whether it makes a substantive difference, either in reasoning or outcome, when women serve as judges. Women judges themselves have contributed to this discussion. Almost all conclude that there is some identifiable difference, but few can, or are willing, to say exactly what, and there is an understandable reluctance to imply that women think differently because they are biologically different. But having women on the bench is a value in itself and need not depend upon a demonstration that gender makes an attributable difference.

Sometimes, however, a case occurs where the gender divide is striking. Questions are raised (if not answered) about whether it is a simple coincidence that the male judges all concurred on one side, and the female judges did likewise on the other. The recent Australian case Monis v The Queen is such a case. It was also numerically unusual. Only six Justices sat – three men and three women - creating the opportunity for an even split. And this, indeed, is what happened.

Monis came to the High Court by way of appeal from the New South Wales Court of Appeal. It concerned a challenge to an offence under a provision of the federal Criminal Code which prohibits the use of a postal or similar service in a way that reasonable persons would regard as being, in all the circumstances, ‘offensive’. The first appellant, Man Haron Monis, had sent personal letters and a recorded message through the post to parents and relatives of soldiers who had been killed in action in Afghanistan. The second appellant, Amirah Droudis, had aided him. Their letters included false expressions of sympathy, quickly followed by personal abuse against the deceased (among other things, calling them ‘murderers’, ‘pigs’, and ‘dirty animals’, and describing them as morally inferior to Hitler)*. This, not surprisingly, had caused offence, not to mention deep distress, to the recipients.

Monis and Droudis did not deny their conduct. They claimed, however, that the offence under which they were indicted breached the Constitution’s implied freedom of political communication. Although the letters dealt with personal tragedies and targeted private individuals, they were styled as forms of political protest against Australia’s military involvement in Afghanistan. Had the court dismissed this characterisation claim, there would have been no case for an appeal.

The political content of the letters was critical. The Australian Constitution provides a guarantee of free speech by implication from Australia’s constitutionally mandated system of representative democracy (which is inoperative without the freedom to communicate political messages). It thus protects only political speech. Although the court has defined ‘political’ very broadly, it has resisted the expansion of this guarantee into a generalised protection of free speech. No freedom, of course, is absolute. A law which burdens political communication or speech may nevertheless be valid, if it is appropriate and adapted to serve a legitimate purpose in a manner compatible with the maintenance of Australia’s constitutional system of government. It was this test, then, that was applied to the law under which Monis and Droudis were indicted.

All the judges agreed that the content of the letters was relevantly political and that the law in question had the effect of burdening the freedom of political communication. They disagreed, however, about its legitimacy. Strikingly, all the men found the law unconstitutional, and all the women, writing jointly, found it valid. Since there was no majority, the decision of the lower court was affirmed. Thus, Monis and Droudis lost their appeal.

This result might have been unremarkable, except for the case’s subject matter. Deep personal feelings were involved, family tragedies, the unbearable pain a parent feels in losing a child. None of the judges was insensitive to this dimension. Indeed, Justice Dyson Heydon began his judgment with an astonishing disquisition on the greater pain experienced by a parent at the death of a child compared to the experience of the adult child at the death of an elderly parent. He illustrated the former with a poem, ‘My Boy Jack’, written during the First World War by a father who had lost his son, describing both the searing grief and the consolation to be had from the fact that the boy had died in service to his country.

The emotional logic was powerful, but the legal logic was more elusive. It appeared to go like this: conduct of the nature in question is especially egregious. It does not lie on the borderline where ‘mere offence’ might be invoked to cloak the suppression of views. All reasonable people would consider such letters to be objectively offensive and deservedly outlawed. Bewilderingly, however, Heydon did not follow this logic. He found the law to be valid. He had never agreed that the Constitution included a freedom of political communication, he said, but (to paraphrase) since the court had affirmed this many times, there was no alternative. Australians could now get a taste of just how awful the result could be. The result, he wrote, ‘demonstrates how flawed [the] law is.’

In contrast, Chief Justice Robert French and Justice Kenneth Hayne, writing separately but with concurring reasoning, raised the spectre of awfulness in the law itself. Its effect, they suggested, would be to ‘chill’ speech. The law was overbroad and the test of objective offensiveness (to paraphrase) offered an open door for suppressing socially unacceptable speech. History, Justice Hayne wrote, ‘teaches that abuses and invective are an inevitable part of political discourse’. Their very point is to cause offence. Democracy just has to live with this. Protecting civility in political discourse is not a legitimate governmental purpose.

Justice Heydon, as we saw, claimed there was no alternative but to find the law invalid. This, given the outcome, was questionable. The women judges, speaking as one, offered an alternative. They did not challenge the implied freedom of political communication, but held that the law’s purpose of protection against this particular type of offence was legitimate and constitutionally compatible. They stressed the extreme nature of the offence, and the capacity of the law to confine itself to extreme conduct.

Women have long been sensitive to the down-side of free speech. Pornography is understood as harmful and degrading of women and it is largely (although not universally) condemned by feminists; yet it is protected as ‘speech’ under the U.S. Constitution. (Consider, in contrast, the South African Constitution which also protects freedom of expression, but not expression which amounts to ‘advocacy of hated based on … gender .. that constitutes incitement to harm’). Feminists have also questioned the American ‘fighting words’ test under which the protection offered by the U.S. First Amendment is withdrawn where the speech is likely to incite immediate physical retaliation. Women, they note, are less likely to strike back if provoked by speech. In the Australian context, Adrienne Stone has drawn attention to Chief Justice Murray Gleeson’s context-sensitive example, in the case of Coleman v Power (2004) concerning the Queensland Vagrants Act which, among other things, prohibited the public utterance of ‘threatening’, ‘abusive’ or ‘insulting’ words. The Chief Justice evoked the picture of a mother in a public park, who is subject to abuse or threats by strangers, and who chooses to leave quietly with her children rather than respond physically. Under the ‘fighting words’ test, she – unlike the violent retaliator (most likely male) - would be unprotected by the law.

Let us complete the logic in the shared recognition by Justices Susan Kiefel, Susan Crennan, and Virginia Bell that the conduct in the Monis case was objectively offensive. Abusing people whose children have died is not a reasonable form of political speech; using the postal service to do this is not a valid public activity. Indeed, if it is legitimate (as it would be) for the law to prohibit the hoax sending of sachets of flour disguised as anthrax, notwithstanding that a political message was written on the packet, then it is legitimate to prohibit the type of communication engaged in by Monis and Droudis. Nothing in the law prevented the appellants from using other forums for their views. They could have handed out leaflets, or placed advertisements in the paper, or shouted out at speakers’ corners in parks. The offensive words would still be there, but they would be directed to ‘the world’, detached from the private and captive experience of reading an abusive letter on the subject of one’s deepest personal grief.

The women judges’ joint judgment highlighted this difference. They stressed the method of communication and (as Gleeson CJ had done in Coleman) the context in which the offence was committed and experienced. In their words, ‘[t]he modern approach to interpretation … requires that the context be considered in the first instance and not merely later when some ambiguity is said to arise’. One cannot help noticing the coincidence between this statement and the observations of women judges and feminist scholars: attention to context and experience is the one common theme in all the tentative accounts of what makes the ‘feminine’ judicial voice distinctive. The fact that an individual male judge (despite his manly display of self-denying fortitude), at least hesitated to extend protection to speech that causes such offence – not because of the values or beliefs held by the target of the speech, but because of the inherent nature of parental love - demonstrates that it is not a matter for women alone.

But, just maybe, the advent of women on the bench and the ‘modern approach’ are connected in subtle ways of which we are occasionally permitted to see a glimmer.

* The Court was invited to consider the U.S. case of Snyder v Phelps (2011), which involved roughly similar facts (albeit the conduct in question was in public), but declined to find an analogy between the Australian implied freedom of political communcation and the U.S. First Amendment protection of free speech generally.

In what way is gender relevant to constitutional citizenship? This is a genuine question, although, perhaps, more tendentious than open-minded. As intended, it assumes that gender is relevant, but in what way remains to be established.

My current research on this question focuses on a particular aspect of history that sounds arcane and, once explained, may seem minor, but that was in reality of major significance: marital denaturalization.

‘Marital denaturalization’ refers to the legal practice of stripping citizenship from women who married foreign men. The idea was that a woman who married ‘out’ ceased to be a citizen of her own country. It took legislative form, at one time or another, between the mid-nineteenth and the mid-twentieth centuries, in virtually every part of the world. It coincided with (and, I argue, was related to) key developments in the formation of the modern constitutional state: the democratisation of political and legal rights (paradoxically, including for women), the growth and solidification of international relations, and the shift from common law to statute in regulating the status of citizens.

Marital denaturalization provisions were found in most countries’ citizenship laws; they were also implicated in laws and practices governing diplomacy, the classification of aliens (including enemy aliens), the right to hold property, the taking of oaths, the changing of names, and more. Each country had its own nuances, but each was committed to the un-nuanced practice of denaturalizing a whole class of married women. Countless numbers of women were affected. This practice was situated in a large, international landscape.

The post-revolutionary constitutional state required a new legal classification of persons. The modern concept of citizenship emerged. Allegiance to a particular state displaced allegiance to the monarch. Allegiance was essentially an attribute of male citizens; women’s allegiance was derivative.

The assumption was that a woman held her husband’s citizenship (although this had not been the case under common law). Women who married alien men therefore presented a classification problem. They had, it was assumed, shifted allegiance, and could no longer be classified as citizens. Transformed into aliens, they lost those political rights they had acquired, as well as the protection of their former constitutional sovereign. They lost what are, effectively, the defining characteristics of the modern citizen: political rights and state protection. We arrive at this understanding of citizenship via the gendered history of loss. So, rather than a story about women, this is a story about the citizen and the modern state.

(I discuss this further in my SSRN paper: ‘When Women were Aliens: The Neglected History of Derivative Marital Citizenship' http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2110546 )

This history has received scant attention. Several wonderful scholars in the U.S. have chronicled their own country’s marital denaturalization laws, but have explained these primarily as serving the goals of America’s racial-exclusion policies. The temporal coincidence of denaturalization laws around the world has gone unnoticed. At the time, however, the international community noticed. Years of campaigning by citizenship equality advocates, plus a growing worldwide recognition that marital denaturalization increasingly led to statelessness, attracted the attention of the League of Nations and finally the United Nations. It concluded in the UN Convention on the Nationality of Married Women, which came into force in 1958, and which proscribed laws that changed a woman’s citizenship by marriage, without her consent. The events that led to this conclusion are complex, and their consequences were at times tragic. But they underscore both the practical and the existential dimension of constitutional citizenship.

Is this the end of the story? Are women now (in the ‘west’ at least)– as equal bearers of legal citizenship and political rights – full citizens? Is gender no longer relevant to constitutional citizenship?

The focus has shifted. A growing body of literature on the constitutional ‘person’ and membership of the constitutional state has generated multiple sub-categories. Alongside constitutional citizenship, we find constitutional identity, constitutional patriotism, constitutional belonging, and more. These converge around a shared concern with pluralism and difference: with ways of reconciling the commonality of constitutional membership with the plurality of its members. The principal concern of such literature – indeed, the virtually exclusive concern - is ethno-cultural difference and the strains this creates on the liberal-constitutional consensus. But, while theories of constitutional identity and constitutional citizenship turn on difference, they almost uniformly neglect a universal and critical form of difference: gender.

What, it will be asked, is particular about women that needs recognition or reflection in the constitutional state? Aren’t women an entirely disparate group, with no more in common than their mere biological characteristics, and aren’t we opposed to essentialism these days, having seen the oppressive stereotyping it permitted in the past?

I will explore these questions further in another post, focusing on the recent Cardozo Law Review Symposium on Michel Rosenfeld’s The Identity of the Constitutional Subject, a work in which the female subject is all but invisible.

Now that I have posted my first entry, a word about this Blog. Its goal, simply stated, is to comment on constitutional law and scholarship, taking into account the reality that constitutions are not gender-neutral. Although an increasing number of scholars know this, many who have been exposed to the idea probably think it eccentric, or regard it as yet-another form of (unpalatable) identity politics. I hope to challenge these views. Many constitutional law professors, I suspect, have simply never thought about it. Although gender equality is now a routine consideration in constitution-making around the world (even if not carried into effect), in the field of constitutional theory, most scholars write as if gender has no place. Even in discussions focused directly on lines of difference or 'identity', gender differences are simply overlooked. (The literature on 'constitutional citizenship' is particularly noticeable in this regard, and I will comment specifically on this in another post.)

I have been a tenured academic since 1988 (and held untenured posts for ten years before that). It took me a long time, too, to treat gender seriously as a matter for constitutional attention, or to feel intellectually comfortable with making feminist claims before sceptical audiences of fellow professors or jurists. The pioneering work of certain scholars, especially in the U.S., helped reverse this 'discomfort'; as did the women of history who asserted, as Elizabeth Ward did in NSW in 1897, that a nation with a constitution that does not reflect the interests of women as well as men 'will be one-sided, inharmonious and dwarfed.' So, I will write about all this: experiences, research, and perspectives on the community of constitutional scholars to which I happily belong. This will thus be 'A Woman's Constitution': by and about.

(I also write about 'mainstream' and doctrinal constitutional issues, btw, and if you are interested in other blog entries, and the excellent work of the Constitutional Reform Unit, please visit http://blogs.usyd.edu.au/cru/ )