J.Rennes. Legal Distinctions or discrimination ? Political Strategies and Epistemological...

LEGAL DISTINCTIONS OR DISCRIMINATIONS?Political Strategies and Epistemological ChallengesJuliette Rennes

De Boeck Supérieur | Politix 2011/2 - No 94pages 35-57

ISSN 0295-2319

This document is a translation of:

--------------------------------------------------------------------------------------------------------------------Juliette Rennes, « Illégitimer des distinctions en droit »,

Politix, 2011/2 No 94, p. 35-57.

--------------------------------------------------------------------------------------------------------------------Translated from the French by JPD Systems

Available online at:

--------------------------------------------------------------------------------------------------------------------http://www.cairn-int.info/journal-politix-2011-2-page-35.htm

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How to cite this article:

--------------------------------------------------------------------------------------------------------------------Juliette Rennes "Illégitimer des distinctions en droit",

Politix, 2011/2 No 94, p. 35-57. DOI : 10.3917/pox.094.0035

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Legal Distinctions or Discriminations?

Political Strategies and Epistemological Challenges

Juliette Rennes

Abstract – By what process does a legal distinction that was previously accepted (whether based on sex, sexual orientation, nationality, age, or marital status) become publicly perceived as discriminatory? This question can be understood both as a research question (within the sociology of social movements or the historiography of struggles for equality) and as a question of political tactics (where it concerns the appropriate strategies for demonstrating the illegitimacy of a particular legal distinction). This paper examines the link between two points of view on the crisis affecting the justification of legal distinctions: that of sociological and historical investigation, and that of political action. By examining the historical narratives by which certain legal categories came to be contested, this paper analyzes the political chal-lenges posed by this history, focusing particularly on comparisons between contemporary demands for equality and prior demands that have now become legitimate.

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II Legal Distinctions or Discriminations?

Contesting Legal Distinctions

The principle of equality in the eyes of the law (“it must be the same for everyone”) and the legal indeterminacy that this entails (“without dis-tinction. . .”) as expressed in the 1789 Declaration of the Rights of Man

and the Citizen have since the end of World War II been reiterated by every international charter, declaration, and convention on human rights.1 However, this principle coexists with a multitude of legal distinctions based on criteria as varied as age, marital status, parenthood, and nationality and concerning a wide range of domains, from political rights to taxation and inheritance by way of freedom of movement, welfare services, and access to public sector positions. To be considered compatible with the principle of formal equality or non-discrimination,2 these distinctions must be based on reasons of public interest and/or objective differences in situations between the legally differenti-ated groups “so long as, in either case, the ensuing difference in treatment is related to the purpose of the law instituting it.” This has, for example, been the reasoning used by the French Constitutional Council (Conseil Constitutionnel), which can also be found in similar terms in precedents from the French Coun-cil of State (Conseil d’État), the European Court of Human Rights, and the US Supreme Court.

Nevertheless, as Danièle Lochak notes, “the existence of a difference in situa-tions is not always easy to comprehend and is determined by a rather subjective assessment [. . .] and references to the general interest also yield fairly unreli-able results.”3 In fact, different courts in the same society and the same era have cited either of these criteria in explaining their rulings on similar situations, but leading to different decisions. For example, in Europe and the United States, some courts have condemned distinctions between same-sex and different-sex couples as regards access to legal unions and parental recognition as being dis-criminatory, while others consider them to be justified due to the different situ-ations of the two types of couples.

Furthermore, the very perception of a difference in situation that would jus-tify differential treatment may itself be built on prior legal frameworks (as is

1. This is the case, for example, of the 1948 Universal Declaration of Human Rights (in particular Art. 2), the 1966 International Covenant on Civil and Political Rights (Arts. 2 and 26), and the European Conven-tion on Human Rights (Art. 14). In France, the 1789 Declaration of the Rights of Man and the Citizen was incorporated into the preambles to the Constitutions of the Fourth and Fifth Republics.2. The principles of formal equality and non-discrimination are often considered, in layperson’s terms (and even in French case law), to be equivalent. However, a number of lawyers argue for their differentiation, as is the case in some EU laws, in which the principle of non-discrimination is a product of “going beyond formal equality in the pursuit of substantial or de facto equality” (Félicien Lemaire, “La notion de non-discrimination dans le droit français: Un principe constitutionnel qui nous manque?“ Revue Française de Droit Administratif 26 (2010), 302).3. Danièle Lochak, “La notion de discrimination,” Confluences Méditerranée 48, 17.

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Juliette Rennes III

the case when a minority already assigned to a separate legal category is easier to perceive as being in an objectively different situation). In such cases, the rela-tionship between different situations and different treatments could become a kind of vicious circle by which different rights engender differences in situa-tions that in turn are grounds for different rights. In hindsight, this bias can be clearly seen by examining how courts, although having been constrained by a requirement to maintain formal equality, justified the attribution of differential rights to women. For example, in 1873, the US Supreme Court upheld a law prohibiting women from holding judicial occupations, citing their lack of suit-ability to exercise such functions.4 For its part, in 1912, the French Council of State explained the prohibition on women entering competitive examinations to become ministerial draft writers and copyists on the grounds that they did not meet one of the criteria for entry, i.e., “the law of the military draft to which only men are subject.”5 In other words, the notions of different situations and of the public interest are not only dependent on judicial subjectivity but also on societal values and general beliefs.

The question of how a dissenting, heterodox point of view on the arbitrary nature of a particular different legal treatment gradually becomes the dominant point of view within a given society can be understood first as a question of political strategy (that is, what to do in order to “make the reality unacceptable,”6 or, in the present case, to cause a distinction previously considered legitimate to be perceived as unjust?). This is also a research question for the historical sociol-ogy of public issues and controversies (that is, how to describe and analyze this historical process of shifting perceptions of the same legal distinction in differ-ent situations?). This paper will begin from this socio-historical perspective. Taking as its main analytical framework the history of republican government in France since the last third of the nineteenth century and then the contempo-rary system of European political and legal constraints, it will compare different challenges to legal distinctions.

However, while differentiating between a category of questions directly focused on action and one pertaining primarily to a goal of gaining knowledge, this paper also aims to show the types of relationships that unite the two. Indeed, identifying continuities and variations in different challenges is not limited to the social sciences. Rather, this type of comparison is often used in activist strat-egies, particularly when the aim is to legitimize a controversial demand (as in the struggles for legal equality between people of different sexual orientations taking place today), by highlighting the features they share with past demands

4. Clare Cushman, ed., Supreme Court Decisions and Women’s Rights: Milestones to Equality (Washington, DC: CQ Press, 2001).5. Cuisset case. The text of the decision of the Council of State is reproduced in Antoine Bonnefoy, Place aux femmes! Les carrières féminines, administratives, et libérales (Paris: Fayard, 1913).6. Luc Boltanski, Rendre la réalité inacceptable (Paris: Demopolis-Raisons d’Agir, 2008).

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IV Legal Distinctions or Discriminations?

that have since been legitimized (such as feminist struggles for gender equal-ity under the law). This paper will therefore begin by examining some of the underpinnings of differences between various challenges to legal distinctions since the last third of the nineteenth century and then present assumptions regarding a number of points of consistency that can, nevertheless, be detected between them. In doing so, the paper will show that shedding light on these consistencies and similarities is also a political strategy in the construction of egalitarian causes.

Challenging Legal Distinctions: A Variety of Practices and Situations

From Localized Disputes to Controversies: Degrees of Contention

In researching challenges to legal distinctions, the observer is confronted with a series of widely disparate practices and situations. First, the scope and intensity of these challenges and of corresponding resistance can vary greatly. The case of an individual man who brings a discrimination suit to the Council of State because his height legally disqualifies him from serving as a member of the Republican Guard (which carries a minimum height requirement of 1.70 m) is just as much of a challenge to different legal treatment – even though such litigation does not lead to a public debate on legal distinctions based on height or physical appearance – as the long-term, contentious mobilization of multiple European associations for the right of non-EU foreign residents to vote. In short, the questioning of legal distinctions may be limited, isolated, localized, and brought by individuals, fulfilled or delayed with little publicity, just as it can grow into a sociopolitical controversy, that is, a long-term dispute relating to a governmental decision and spread across a multitude of academic, government, congressional, judiciary, activist, and other arenas.7

These distinctions relating to the scale, publicity, contentiousness, and exten-sion of demands enable at least two types of comparisons: a synchronous one, and a diachronic one. Synchronously, different contemporary demands can be compared against one another in an attempt to understand precisely why some never evolve beyond scattered, localized disputes (such as the disputes arising today over age-based legal distinctions), while others are taken up by orga-nized actions and counter-actions (such as the disputes arising as a result of legal differences in treatment on the grounds of sexual orientation) and receive

7. In this way, it is possible to distinguish between sociopolitical controversy, scandal, and court cases or “affair” (which, although contentious, pertain more to the guilt or innocence of the accused than to the issuing of a decision concerning the entire community, even if such trials, scandals, and controversies can of course be interwoven). See Elisabeth Claverie, “Procès, Affaire, Cause: Voltaire et l’innovation critique,” Politix 26 (1994), and Damien de Blic and Cyril Lemieux, “Le scandale comme épreuve,” Politix 71 (2005).

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ongoing media coverage. Diachronically, the different stages and episodes of a single demand – localized and contained at the outset but gradually infiltrating numerous public debate forums (possibly accompanied by the inclusion of new players and/or a reformulation of the demand) – can be identified and com-pared. During the latter third of the nineteenth century, the women in various European countries who demanded the right to work as doctors and lawyers if they earned the same diplomas that made men qualified for such careers were often both the witnesses and the protagonists of such transformations. That is, their cause was originally confined to the educational and professional institu-tions where it had emerged (medical schools, the Bar, etc.), and then went on to become a focus of debates in Parliament, the courts, major daily newspapers, satirical newspapers, novels, and variety shows.8

From this perspective, challenges to legal distinctions can be analyzed in part by using tools tried and tested on other sociopolitical controversies relating to the emergence, the development, the transformations, or the resolution of public issues.9 However, some of the foundations for differentiating between disputes engendered by challenges to legal distinctions (which, for the sake of simplicity, will hereinafter be referred to as “formal equality disputes”), are more directly the result of the content of the disputed egalitarian questions, particularly the variety of legal distinctions that may be grounds for contention.

From Minority Advocacy to Critiques of Affirmative Action: The Ideological Diversity of Demands for Formal Equality

The legal distinctions that exist today were all instituted at different times, for different political reasons, and in order to set apart population segments defined by criteria not readily comparable with one another, such that the political positions of individuals or groups demanding the abolition of a par-ticular distinction are not in themselves homogeneous. Indeed, although pub-lic activism from the end of the eighteenth century to the 1970s undertaken in the name of the principle of formal equality chiefly claimed to be fighting for minority groups not protected by general legislation (Jews, foreigners, women, indigenous peoples, and so on), since the 1980s, the political mean-ings of demands for the universal rule of law have diversified. Moreover, while still built on advocacy for minorities directly or indirectly excluded from gen-eral legal protection (including documented and undocumented immigrants, same-sex couples, etc.), demands for formal equality have also been raised

8. For an examination of the French case, see Juliette Rennes, Le mérite et la nature, une controverse répub-licaine: L’accès des femmes aux professions de prestige (1880-1940) (Paris: Fayard, 2007); for a comparison between different European countries, see Maria Malatesta, Professional Men, Professional Women: The Euro-pean Professions from the Nineteenth Century until Today (London: Sage, 2010).9. See, for example, the papers in the special issue entitled “Comment on se dispute: Les formes de la con-troverse,” Mil neuf cent 25 (2007).

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VI Legal Distinctions or Discriminations?

– seemingly paradoxically – to denounce the different treatment instituted in favor of disadvantaged groups of the population on the grounds of equity. As a result, there have been occasional challenges to the affirmative action measures adopted in favor of ethnic minorities and women in many countries, beginning in the 1980s, and to certain social rights won between 1850 and 1950, such as the special retirement systems instituted in France, Great Britain, and Germany for certain professional categories that require hard labor. Those affirmative action measures and special retirement systems have been accused of violating the principle of legal equality.

In France, for example,, there have been debates and controversies about the Gender Equality Law (“loi sur la parité”) enacted on June 6, 2000 and sup-ported by many of feminist activists, which aimed to increase the presence of women in elected assemblies. This law required a modification of the Constitu-tion because in 1982 the Constitutional Council had ruled that a law requiring that ballots contain at least 25% candidates from each gender violated the prin-ciple of formal equality, as all citizens – without distinction – must be allowed to run for public office.10 Throughout this gender equality controversy, actions and mobilizations against the proposed laws were taken by a coalition of actors as wide-ranging as some feminists demanding the application of the principle of formal equality and political figures and intellectuals more systematically hostile to the feminist cause.11

Somewhat similarly, the French feminist movement was divided in the 2000s over the suppression of a pro-birth measure (which encouraged high birth rates among working women), which dated back to 1924: this measure consisted in the addition of an extra year of service per child for female public sector employ-ees in the calculation of their retirement benefits. This measure was defended by a number of feminists as compensation for the professional disadvantages suffered by mothers due to interruptions in their careers for maternity leave and by the very fact that they raised their children, but was denounced by others as running contrary to the principle of formal equality between women and men, mothers and fathers. From the latter perspective, a father’s claim filed with the Court of Justice of the European Union in 2001 led to the extension of this mea-sure to both genders (the Griesmar ruling), even if its retroactive effect was sub-sequently limited by a decision of the Council of State (of March 1, 2004). Some studies have also shown the multitude of ideological and political meanings that can be carried by challenges to age-based legal distinctions. For example,

10. In rendering its decision on November 18, 1982, the Constitutional Council referred in particular to Article 6 of the Declaration of the Rights of Man and the Citizen (“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 abili-ties, and without distinction except that of their virtues and talents”).11. See Laure Bereni, “De la cause à la loi: Les mobilisations pour la parité politique en France (1992-2000)” (PhD dissertation, Université Paris I, 2007), 258-87.

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Juliette Rennes VII

demanding equal treatment for all regardless of age can target both the social stigmatization of aging and the exclusion of children from certain rights as well as seeking to challenge welfare protection based on age-related criteria, as in the fields of retirement benefits and criminal punishment.12 From this perspec-tive, the republican and universalist-inspired denunciation of special rights for disadvantaged groups on the grounds of neglecting the formal equality shares a number of arguments with neoliberal inspired critiques of the welfare state.

From Social Welfare Protection to Immigration Control: A Multitude of State Objectives behind the Establishment of Legal Distinctions

The ideological heterogeneity of calls for formal equality relates back to the multiple legal and State objectives that governed the development of the legal distinctions we have today. Well before the introduction of affirmative action measures, French women, for example, enjoyed a number of special social rights throughout the Third Republic in their capacities as mothers, wives, or workers, and yet remained on a level with minors at the civil and political lev-els. Thus, feminists have long cited formal equality as ground for abolishing gender-based civil and political distinctions while demanding the institution of special social rights linked to the special situations of mothers and female workers. Within the special legal status of women, they differentiated between discrimination and protection. However, apart from feminist issues, a number of measures established in the last third of the nineteenth century carry with them that same ambivalence. While some, based on criteria related to income, the number of dependents, age, or health, aimed to allocate welfare benefits from a perspective of protection and equity, others – or even in some instances the same ones – were part of a system of social control and hierarchies between different population segments.

Thus, at a time when French married couples were encouraged to have chil-dren (through the award of special rights while being legally protected from certain social risks), the legal condition of citizenship – which tended to be a requirement for access to a number of welfare benefits – was an indication of both the lesser importance placed on the lives and standards of living of for-eign nationals and of the State’s control over the nation’s reproduction.13 For example, in the workplace, while foreign nationals in France benefited from laws on health, safety, occupational injury, and mandatory weekly rest time, in the

12. On these general subjects, see Vincent Caradec, Alexandra Poli, and Claire Lefrançois, “Les deux visages de la lutte contre la discrimination par l’âge,” Mouvements 59 (2009). On the subject of debates on lowering the age of criminal responsibility, see Évelyne Sire-Marin, “Jeunesse et justice: Les classes d’âge dangereuses,” Mouvements 59 (2009).13. This system can be considered structural to the “biopolitics,” described by Michel Foucault, that is, the State’s concern for the lives, health, and standards of living of its constituents, which is also based on the segmentation and hierarchical organization of the populations, notably on biological grounds. Michel Foucault, Naissance de la biopolitique: Cours au collège de France 1978-1979 (Paris: Gallimard-Seuil, 2004).

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VIII Legal Distinctions or Discriminations?

absence of a bilateral treaty with their home countries, French citizenship was required in order to receive free medical assistance (1893), benefits for the infirm and the permanently disabled (1905), or the discounted rail travel granted to members of large families (1924). Between World War II and 1998, the various retirement benefits under the French Social Security Code to older employees, mothers, and disabled adults were also subject to the condition of citizenship.14

Although the condition of citizenship was gradually repealed in those domains in response to litigation and demonstrations, a number of measures controlling foreign nationals’ right to marriage and parental recognition con-tinued to draw legal distinctions between the family lives of the French and those of foreigners through the contemporary period. Thus, in France, the free-dom to marry and have a family was weakened by special legislative provisions designed to combat marriages and paternity “of convenience.” Since the enact-ment of the 1993 and 2003 laws on immigration amending the French Civil Code, mayors and public prosecutors have been granted additional powers, allowing them, for example, to impede marriage fraud. Since the law of July 26, 2006, entry into a marriage contract or recognition of paternity or maternity solely in order to obtain a resident’s permit, citizenship, or protection against deportation is punishable by five years imprisonment and a €15,000 fine.15 However, since French citizens entering into marriage contracts solely for the purpose of obtaining a job transfer (in the case of public employees) or tax ben-efits are not covered by that law, the measure introduced an indirect distinction based on citizenship. As Danièle Lochak commented, “The perversion of the institution of marriage [. . .] is punished by law when perpetrated by a foreigner but not when it is the action of a French citizen.”16

Consequently, although the layout of legal distinctions between foreigners and nationals under the French Third Republic (1871-1940) partially over-lapped the layout of gender-based distinctions, many aspects thereafter were very different. Between the 1870s and the 1930s, French women and foreign-ers of both genders were deprived of part of their political rights, and it was precisely in the name of that lack of political citizenship that gender- and citizenship-based conditions sometimes barred their equal access to the judi-cial, administrative, and political professions.17 However, while feminists in the

14. Hélène Chaput, Katia Julienne, and Michèle Lelièvre, “L’aide à la vieillesse pauvre: La construction du minimum vieillesse,” Revue Française des Affaires Sociales 1 (2007).15. This system was supplemented by a bill passed by the National Assembly on October 5, 2010 addressing the specific case of marriages of convenience in which the French spouse is deceived as to the foreign spouse’s true intentions, increasing the penalty for such fraud to seven years imprisonment and a €30,000 fine.16. Danièle Lochak, “L’image de l’étranger au prisme des lois sur l’immigration,” Paper presented at the symposium on “Image de soi, image de l’autre,” Centre d’Histoire et d’Anthropologie du Droit, Université Paris Ouest, Nanterre, France, June 11, 2010.17. See Serge Slama, “Le privilège du national: Étude historique sur la condition civique des étrangers en France” (PhD dissertation, Université Paris X, 2003): 359 ff.

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Juliette Rennes IX

1970s were making progress toward attaining equal access to every profession for both genders18 and were fighting, first and foremost, for women to be able to exist as something other than mothers and housewives, both male and female non-citizens were struggling against persisting legal professional discrimina-tion and for the right to a family life and to social rights under the same condi-tions as French nationals. For example, the equality petitions brought before the Council of State by the Immigrant Information and Support Group (Groupe d’Information et de Soutien aux Étrangers – GISTI created in 1972) targeted not only prohibitions on access to government and regulated jobs, but also decrees impeding family immigration (1978), retirement benefits for former combat-ants, which were unequally distributed between French and foreign nationals (petitions submitted in 2001 and 2006),19 and social benefits with a citizenship clause, such as the aforementioned “large family” discounted rail travel card (2003 petition).

Finally, if the development of the welfare state helped bolster certain priv-ileges held by French nationals over foreigners, it also served to sharpen the dividing line between legitimate and minority sexual orientations meaning that special social advantages were reserved for married, French, heterosexual couples.

This process created intersections between the direct and indirect discrimi-nation experienced by French homosexual couples and foreign or bi-national heterosexual couples in terms of their access to certain welfare benefits. It also generated specific forms of discrimination against foreign and bi-national same-sex couples, linked to an accumulation of indirect discrimination based on sexual orientation (such as a ban on marriage) as well as direct discrimi-nation based on citizenship (such as difficulties in obtaining resident permits other than by the very marriage from which they were barred).20

18. Established by the law of October 19, 1946 (giving men and women equal access to all government jobs) and by the 1946 Constitution (guaranteeing “for women, equal rights to those of men, in all domains”), the principle of equal access to jobs was gradually implemented in every professional domain, and disputes on women’s access to a particular rank, title, or position became far less common, even if they did not disap-pear overnight.19. GISTI, Défendre la cause des étrangers en justice (Paris: Dalloz-GISTI, 2009). Other, much earlier cases pertained to equal access to family benefits. For example, Alexis Spire describes a 1948 strike by Moroccan and Tunisian migrant mine workers in Valenciennes (in northern France) for the right to receive bonuses for new births and the family benefits to which children remaining in Morocco or Tunisia were not eligible because the legislature had wanted to “encourage only native French families.” Alexis Spire, “Semblables et pourtant différents: La citoyenneté paradoxale des ‘Français musulmans d’Algérie’ en métropole,” Genèses 53 (2003).20. In France, for a foreign national in a legal civil union (with a person of the same or opposite sex), that legal civil union [called in French a “PACS” for “Pacte Civil de Solidarité” (Civil Covenant of Solidarity)] constitute only one component in the assessment of a person’s private and family life that would allow the granting of a residency permit, whereas a marriage is recognized as legitimate automatically entitling the foreign spouse to such a permit.

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X Legal Distinctions or Discriminations?

This variety of State objectives, political challenges, and players involved in formal equality disputes leads to a final set of analytical distinctions between different demands for equality. This analytical distinctions concern how each demand is connected to other egalitarian causes, whether these be contempo-rary or earlier struggles.

Successions, Connections, or Competition: Historical Narratives of Demands for Equality

When struggling to abolish a particular legal distinction, a linear history is often recounted, marked by growing legal equality between individuals and the gradual non-differentiation of legal subjects, which makes it possible to inter-ject one’s own demand as part of a kind of historical law, moving toward ever greater equality. Following this approach, there is a tendency to present the spe-cific type of discrimination being fought against as the only form of discrimi-nation persisting in a system that has become egalitarian, which makes other existing forms of discrimination less visible, at least momentarily. Conversely, it is also possible to emphasize the connection between egalitarian causes and to build alliances between different social categories suffering at the same time from legal discrimination.

To a large extent, the first strategy was the one that was adopted by feminists during the Third Republic, who referenced, in chronological order, the abolition of privileges in 1789, the ban on the discriminatory status of Jews, the prohibi-tion of slavery, and finally the elimination of the criterion of being a taxpayer for men to have the right to vote, and presented the status of French women under the Republic as the last major infringement of the principle of formal equality espoused by the Declaration of the Rights of Man and the Citizen. The status of foreigners residing in France and of natives of the French Empire was generally not perceived as contradictory to the principle of equality,21 and the few heterodox, dissenting feminists who saw a similarity between the situations of French women, foreigners residing in France, and indigenous people had virtually no say in the political and ideological context of the Third Republic. Consequently public debates always drew parallels between the status of French women and forms of discrimination that had already been abolished (and were therefore illegitimate).

Today, demands for formal equality tend to establish greater analogies and connections between distinctions based on gender, sexual orientation, and cit-izenship. In addition to NGOs working in the area of general human rights advocacy, which claim to be followers of the spirit of the expression “without distinction” included in post-World War II declarations of rights (theoretically without prioritizing the different anti-discrimination causes), there are also

21. See Olivier Le Cour Grandmaison, De l’indigénat: Anatomie d’un “monstre juridique” (Paris: Zones, 2010).

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Juliette Rennes XI

associations that focus specifically on interrelationships between (or the accu-mulation of) different types of discrimination. In France, this is the case, for example, of ARDHIS (an association working for the recognition of the rights of homosexuals and transsexuals migrants), which has been fighting legal dis-crimination on the basis of sexual identity and citizenship simultaneously since 1998. However, there are also forms of competition and opposition between the often related causes of women, sexual minorities, and migrants. For example, for the past 15 years, public policy and European legislation, although advertis-ing their openness to the rights of sexual minorities and women, often justify the most restrictive immigration and residency measures on the grounds of controlling migratory flows or the need to fight terrorism. Within this context, references to the equality of the sexes and of sexual orientations can in some cases be used as a tool to denounce the “archaic attitudes” or the “danger” posed over sexual issues by citizens from poor countries.22

In addition, although discrimination based on citizenship or sexual orienta-tion has ceased to be invisible, the activism that condemns it can heighten the invisibility of other forms of discrimination, at least temporarily. For example, just as the feminist struggle for equal rights partially obscured the legal discrim-ination suffered by racialized population groups, the contemporary struggle for the rights of legal aliens can lead to the entrenchment of the legal boundary between documented and undocumented immigrants once the condition of the legality of their residence is accepted as a legitimate criterion for access to rights reserved for citizens. Regarding the demands of same-sex couples for the right to enter into legal unions, these may – if only for a short while – increase the impact of legal distinctions between single people and those in relation-ships in terms of their eligibility for certain benefits (such as tax benefits) and, more generally, the greater social legitimacy attributed to people in long-term relationships.

These tense relations of each egalitarian cause with other egalitarian causes are visible in the activist narratives of the history of legal distinctions and their abolition. The dominant narrative on which demands for formal equality tend to be based, i.e., that of the gradual establishment of statutory equality specific to the history of democracies since the last third of the eighteenth century,23 is

22. Judith Butler illustrates this instrumentalization of the cause of sexual minorities using the example of the integration test that Dutch embassies in 138 countries had applicants for immigration to the Nether-lands take in 2006. These candidates were expected to react without hostility to a video showing two men kissing. However, those earning over €45,000 per annum and nationals of rich countries, such as Japan, New Zealand, United States,, were exempted from this test of migrant tolerance. Judith Butler, “Sexual Politics, Torture, and Secular Time,” British Journal of Sociology 59 (2008). On this subject, see also the papers in the special issue on “Femmes, étrangers: Des causes concurrentes?“ Plein-droit 75 (2007).23. On this system of “progressive” historical narrative, see, in particular, François Hartog, Régimes d’historicité (Paris: Seuil, 2003).

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XII Legal Distinctions or Discriminations?

not unfounded, although it has of course been largely stylized to suit its own purposes. First, the history of the abolition of social and gender distinctions in access to specific careers and to civil and political rights does not follow a linear or cumulative path since it is replete with periods of backsliding, stagna-tion, and challenges to previously won rights. Furthermore, as was mentioned above, unprecedented discriminatory legal conditions have developed in those democracies in parallel to the inclusion of new categories in the community of citizens. In France, new boundaries were drawn within the population, with the extension of the colonial empire, which made new populations subject to the Native Code (Code de l’Indigénat), the increasingly severe legal inferiority of foreign nationals, to whom many jobs were closed off between 1889 and 1944 in the name of “domestic labor protection,” and at the same time the creation and consolidation of a new legal category subject to discrimination, namely that of “naturalized citizen.”24

In this way, while building up their demands as part of an inexorable prog-ress toward ever greater equality, the dissenting lawyers who denounced the new legislative measures against naturalized citizens of the 1930s25 also had to demand a return to a previous stage in the law. Today, in France, this is echoed by contemporary advocates for sexual minorities and foreign nationals: while setting their demands along the linear history of the shift toward greater equal-ity begun in 1789, they are also compelled to reiterate the fact that some persist-ing (or recently abolished) legal forms of discrimination were in fact instituted after more egalitarian situations, whether this pertained to restrictions on the eligibility of non-citizens to occupy the professions or to enjoy certain political rights or to the criminalization of homosexual practices.26

In other words, advocates of equality have an interest in showing on the one hand that the legal distinctions they are fighting did not always exist and that they are the result of political decisions strongly dependent on specific circum-stances, that is, that was has been done can be undone, and that the legally dif-ferentiated population segment existed before and outside of that special status.

24. As Serge Slama writes: “With each reform (1889 and 1927) that liberalized the right to French citi-zenship or the conditions for the naturalization of foreign nationals, whether for demographic reasons or assimilative beliefs, and with each crisis undergone by French society (the Dreyfus Affair, World War I, the Great Depression, and the Occupation), there was a corresponding increase in what naturalized citizens were not allowed to do.” Slama, Le privilège du national, 337.25. Slama, Le privilège du national, 458.26. With regard to political rights, Article 4 of the 1793 French Constitution is often cited in contemporary arguments for non-citizens’ rights because it granted citizenship “to any foreign national who, residing in France for at least one year, earns a living, or acquires property, or marries a French woman, or adopts a child, or provides subsistence for an elderly person, in short, to any foreign national considered by the legis-lature to be deserving of humanity.” In terms of advocacy for same-sex couples, reference is frequently made to the fact that the 1810 French Penal Code (unlike the one in place under Vichy and after the Liberation), was indifferent to sexual orientation.

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Juliette Rennes XIII

Meanwhile, showing that a system of non-differentiation existed prior to the legal distinctions now in effect actually weakens the argument that the process of non-differentiation between legal subjects is a necessary, natural, and linear trend in contemporary history. Yet, it would appear that this tension in how history is used also affects, in some ways, how the social sciences construct com-parisons between different struggles for equality.

Comparison of Formal Equality Disputes

Demanding and Denouncing Equality: Patterns of Argumentation

My motivation for this research project was inspired by an observation: while studying the controversy surrounding women’s access to professions reserved for men under the French Third Republic, a controversy arose in France regard-ing the eligibility of same-sex couples for legal unions and parental recognition. The controversy focused on bills proposing to allow civil unions for any couple regardless of gender. While the context in which the protagonists of these two types of demands, separated by a century, may at first glance appear very dif-ferent (as do their social characteristics), at the argumentative level, they share a striking number of features. An in-depth examination of the parliamentary debates, pamphlets, essays, press articles, and professional guides that fueled and structured conflicts over the course of over 60 years on women’s access to the professions of doctor, lawyer, engineer, certified high schoolteacher, admin-istrative head, or diplomat, and a partial monitoring of parliamentary, govern-ment, media, and activist debates on same-sex couples’ access to rights reserved for opposite-sex couples brought a two-fold argumentative inertia to light.

On one level, some of that inertia is internal to the controversy over women’s access to certain careers, i.e., a reiteration – in different debates and forums, at different times, concerning different professions, and put forward by different actors and generations of actors – of the same argumentative bouts between proponents and opponents of women’s access to a particular profession between 1870 and 1940. In fact, the study of heterogeneous and longitudinal collections of texts reveal the limited number of arguments employed. This characteristic pertains not only to the formal aspect of argumentation (as can be identified using a typology of argumentative techniques that differentiates, for example, between reasoning based on definitions, consequences, or causes)27 but also to thematic adjustments to those argumentative techniques. Indeed, chronological variations in those arguments appeared to be fairly superficial given the scope of the transformations feminizing the working world throughout that period

27. This includes the now-classic typology developed by Chaïm Perelman and Lucie Olbrechts-Tyteca in La Nouvelle rhétorique: Traité de l’argumentation (Brussels: Éditions de l’Université de Bruxelles, 1958). Revisit-ing Aristotelian rhetoric, the authors identified more than 80 types of arguments, divided into three main families of reasoning.

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XIV Legal Distinctions or Discriminations?

and of the multitude of actors involved in those controversies.28 On another level, starting with a comparison of the controversy over equal access to careers for both genders as well as the controversy over same-sex couples’ eligibility for marriage and parental recognition and adding a third contemporary controversy – that of the rights of foreign residents – the same topoï (or themes can be identi-fied, including, in some instances, the same phrasings and even terminology.29

Observing the regularity (or the rarity) of the themes [topoï] employed in debates over egalitarian issues over the past two centuries is not a fundamen-tally original idea. A number of argumentative studies of ideologies have dem-onstrated that it is in fact possible to “reduce a vast and lengthy corpus to a few, favorite argumentative outlines” and that “from generation to generation – and on widely differing subjects – a single general mindset uses a finite (and very limited) number of lines of reasoning, which it gives the impression of discover-ing anew each time.”30 Generally, anti-equality discourse has been studied more than the opposing sets of pro- and anti-egalitarian arguments that provide for an understanding of the argumentative transformations of each position. These analyses include those of Albert Hirschman on the stability of the argumenta-tive schemata of what he labels “reactionary” rhetoric since the late eighteenth century,31 and those of Marc Angenot on the history of the denunciation of socialism, progress and modernity in the nineteenth and twentieth centuries.32

Yet this very literature tends to formalize and systematize what the actors involved in those controversies have tested and learned. The qualification and disqualification of arguments from a normative point of view (“What a cli-ché!”) or a political one (“What a typically reactionary argument!”) are part of any system of refutation, particularly in longstanding controversies, in which the debaters are familiar with the opposing arguments.33 Thus, when analyzing the arguments put forward in any controversy, one is necessarily confronted with these “meta-argumentative” processes, by which actors classify and assess their adversaries’ arguments and attribute them to a typical form of doxa (or dogmatic content) or ideology that pre-dates the exchange.

28. Rennes, Le mérite et la nature, 113-20 and 165-367.29. Some of these typical arguments are presented in Juliette Rennes, “Les controverses d’égalité de droit en régime républicain: Catégories cognitives et répertoires argumentatifs,” in Le temps de l’État, eds. Bertrand Badie and Yves Déloye (Paris: Fayard, 2007), 408-19, and in Juliette Rennes, “L’invocation des Lumières dans l’histoire de la République: Des discours sous contrainte,” in L’esprit des Lumières est-il perdu?, ed. Nicolas Weill (Rennes: PUR, 2007), 71-90.30. Marc Angenot, Dialogues de sourds (Paris: Mille et une nuits, 2008), 317.31. Albert Hirschman, The Rhetoric of Reaction : Perversity, Futility, Jeopardy. (Cambridge, MA: The Belknap Press of Harvard University Press, 1991).32. See, for example, Marc Angenot, “Contre le socialisme: Essai d’histoire discursive: 1830-1917,” Discours Social 16 (2003) and Marc Angenot, La Parole pamphlétaire (Paris: Payot, 1982).33. See, for example, Marianne Doury, “La classification des arguments dans les discours ordinaires,” Langage 154 (2004).

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Juliette Rennes XV

For example, in the anti-equality discourse, there is a particular formula-tion of arguments justified by their consequences that entails the prediction that the egalitarian measure being demanded would lead to a series of undesir-able effects for those for whom it is intended or even for the community as a whole. These predictions often have been identified by proponents of equality as typical of the opposing discourse. They ascribe such arguments to a history of anti-egalitarian discourse destined to be disqualified by the course of history: in other words, the damaging effects predicted in the case that foreign nationals should win the right to vote are the same false predictions used in the past to argue against women’s suffrage.

One of the forms of this argument stressing undesirable effects, often referred to by argumentation theorists as the “slippery-slope” argument, or a Pandora’s box reasoning, and which consists of predicting that “if you take a first step, you will find yourself caught up in a sequence of consequences from which you will be unable to extricate yourself and that you will eventually propel ever faster toward some disastrous outcome.”34 This reasoning was, for example, identified by French feminists in the 1880s and 1890s as a cliché they labeled as the “from bad-to-worse argument.”35 While asserting that such an argument, predicting a series of domestic troubles for women and global catastrophes for society as a whole (including the death of marriage, falling birth rates, and the end of civilization), was to be disproved in the “judgment of History,” those femi-nists also espoused a “meta-discourse” which legitimized their own demands, by referencing those discourses previously used in favor of the common people [roturiers], of Jews, and of slaves and presenting themselves as heirs to struggles that had come to be recognized as valid.

In other words, the comparison of arguments and disputes is by itself an argument used in struggles, and the drawing of parallels between current (anti-)egalitarian positions and past (anti-)egalitarian positions is a strategy shared by studies of the history of disputes over equality and by activists in order to discredit their opponents’ positions. However, although engaged actors do not focus on interpreting this repetition of argumentative conflicts, no his-tory of argumentative patterns could do without such an analysis. How can the limited number of argumentative resources utilized by actors with different social characteristics, at different periods, and in varying forums be explained when the aim is to denounce or, on the contrary, justify demands for equality?

Legal and Discursive Constraints Common to Diverse Conflicts

Over and above egalitarian issues, any long-term sociopolitical controversy tends to be imbued with a degree of discursive stability. That is, the debaters use

34. Douglas Walton, Slippery Slope Argument (Oxford: Clarendon Press, 1992), 1.35. Rennes, Le mérite et la nature, 117-120.

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XVI Legal Distinctions or Discriminations?

existing argumentative repertories not only because those arguments are receiv-able (since they have previously been heard in public debates) but also because reusing them is a way of asserting one’s membership of an ideological or argu-mentative side, whose typical argumentative repertoires function precisely as a sort of banner in a variety of forums and situations. Emphasizing this aspect of argumentative activity means recognizing that in such situations, people argue above all to test and uphold the solidity of their own beliefs and to identify and show belonging amongst themselves more than to win over an adversary, unlike the classic definitions which identify persuasion as the aim of every argumenta-tion.36 While this dimension contributes to the low variation in argumentative repertoires (regardless of the forum or audience), such stability is further rein-forced when the issue being debated is expressed in a dichotomic manner that tends to exclude outside positions. This is generally the case with debates over formal equality (i.e., for or against the access of a particular category of people to a particular right) as well as with many controversial legislative issues.

However, some of the causes of the limited number of argumentative resources in debates over legal equality are a more direct result of the history of the egalitarian subjects being debated. Indeed, on the side of those demand-ing equality, the use of an identifiable, proven rhetoric previously employed by spokespersons of excluded groups is a question of legitimization. That is, their arguments can only be quotations, redeploying the legal argumentative logic (in infinite variations for new population segments) thanks to which previously excluded groups obtained their integration into the community as equals. Yet this logic, as used in human rights declarations and in case law on matters of equality, boils down to two main arguments: on the one hand, the argument for inclusion (what holds for any x also holds for any category of x), which can also be expressed in syllogistic form as: all x’s have the right to y; z is an x; therefore, z has the right to y, and on the other, the argument of precedent, which requires two similar situations to be handled similarly.37

For their part, opponents of equality are limited by this same logic due to the need to justify any impediments to the egalitarian principle in societies that adhere to such principles. First, in specifically legal debates, as was seen above, a difference in treatment can only be justified by a difference in situation or a reason of public interest. Yet this normative requirement tends to be applied to all publicly-held discourse on egalitarian issues. For example, under the French Third Republic, although the Declaration of the Rights of Man and of the Citi-zen was no more incorporated into the Constitution than was a general principle of non-discrimination, the egalitarian imperative was also rather broadly felt in public debates due to its omnipresence in the ideology and the legitimization of

36. For a discussion of these theories, see Angenot, Dialogues de sourds.37. Chaïm Perelman, Justice et raison (Brussels: Presses de l’Université de Bruxelles, 1963).

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Juliette Rennes XVII

the government as well as in numerous fields of positive law.38 Moreover, for over half a century now, this obligation to justify any deviations from the egalitarian principle has been reinforced considerably, first in connection with the process of expressing in legal terms the principle of formal equality at both the national and the EU or international level39 as well as in connection with the growing legisla-tive framework surrounding the public expression of anti-egalitarian positions. For example, the penalization in France of racially-motivated hate speech (1972) and of sexist and homophobic hate speech (2004), both of which were also insti-tuted in several other West European countries, contributed to the normaliza-tion of the political discourse that was traditionally the most hostile to the causes of women, sexual minorities, and foreign nationals. To be considered publicly acceptable, this discourse has tended to align itself with the dominant discourse, at the same time cultivating the art of handling allusion, double meanings, and controlled slips that allow it to remain complicit with sub-sets of followers recal-citrant to such an alignment, which they decry as being “politically correct.”40

Indeed, this process of controlling public discourse on egalitarian issues can also be seen from the opposite perspective when dealing with the opinions of social groups hostile to a particular demand for equality expressed in venues that are either private or potentially publishable but only under the protection of anonymity. For example, the gap between the public stances taken against the marriage of two men that was conducted in the name of equal rights by Mayor Noël Mamère in Bègles, France in 2004, and the four million letters of insult – in some cases signed, but most often anonymous – he received condemning his action is telling of the constraints placed on public speech when it comes to equality.41 On the one hand, the anonymous letters made it possible to express words expressing outrage, verbal violence, and a pornographic and scatological register designed to belittle the newlyweds and restore “the legitimacy of the deposed hierarchy”42 of dominant sexual identities over minority sexual ones. On the other, the need to speak in public and in their own names compelled the debaters to use a very limited number of arguments that were essentially proce-dural (pertaining to the specifically legal problems raised by the marriage) and to justify their hostility to that demand by emphasizing the interest of the child or the differences in the situations of heterosexual and homosexual couples from the perspective of the institution of marriage.

38. Claude Nicolet, L’idée républicaine en France: Essai d’histoire critique (Paris: Gallimard, 1982).39. Denis Martin, Égalité et non-discrimination dans la jurisprudence communautaire: Étude critique à la lumière d’une approche comparatiste (Brussels: Bruylant, 2006).40. On this subject, see the special issues of Mots on the arguments of the radical right (58, 1999) and con-temporary mutations of pamphleteer speech (91, 2009).41. Published in Serge Simon, ed., Homophobie France 2004 (Latresne, France: Le Bord de l’Eau, 2004).42. In the words of Hugues Constantin de Chanay, “Outrage contre outrage: Les lettres adressées à Noël Mamère à l’occasion du mariage de Bègles,” in Outrages, insultes, blasphèmes, et injures: Violences du langage et polices du discours, eds. Éric Desmons and Marie-Anne Paveau (Paris: L’Harmattan, 2008), 153.

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XVIII Legal Distinctions or Discriminations?

This restricted number of publicly acceptable arguments on the subject of equality tends to explain the existence of a historiography of ideologies and arguments on egalitarian issues that, like Albert Hirschman, attribute only sec-ondary importance to the social actors, considered to be simple users of rel-atively limited argumentative repertories in relation to which they have very little room of maneuver. However, studies of the strategies employed to both demand and resist equality cannot be limited to tables of pairs of typical oppos-ing arguments that have over the past two centuries (with the occasional con-textual readjustment) provided structure to struggles for equality. In fact, this research topic brings us head to head with the way in which within this his-tory, the longer time frame of argumentative repertoires on egalitarian issues is linked to the shorter time frame of the actors testing, shifting, and reworking them in response to new situations.

Indeed, contesting legal distinctions involves drawing parallels between the distinctions that one is fighting and previously abolished distinctions. Then, it is important to understand what makes these parallels possible as well as receiv-able at a particular time and in a particular place. How is it that political leaders who would have inspired hilarity, perplexity, or indignation 30 years earlier were able in the 1990s to make people consider the possibility that distinctions based on sexual orientation with regard to access to legal unions and parental recogni-tion was perhaps no more valid than distinctions based on gender, race, or reli-gion? Why is it possible today for arguments to start to be broadcast, demanding in the name of the abolition of distinctions between species, that non-humans be considered legal subjects, and this not only in dissident, heterodox forums but also in the mainstream media without their authors being seen as cranks?

Situations in which Demands Emerge and the Crisis in Justifying Legal Distinctions

To explain the emergence of egalitarian demands, contemporary politi-cal theories on the democracy and historiography of equality struggles stress those movements’ roots in the contradiction specific to the democratic system, which established the universality of the rule of law while historically revising a portion of those rights, defining them as specific rights (reserved for men, citizens, “legitimate” children, etc.).43 By denouncing the contradiction between words and actions, between proclaimed equality and instituted inequalities, the social actors (in their various political contexts) seize on the performativity of the apparently observational statement that “all men are born and remain free and equal under the law” to attack all of the measures of positive law that

43. Coming from different perspectives, the work of Étienne Balibar, Claude Lefort, Chantal Mouffe, Jacques Rancière, Pierre Rosanvallon, and Joan Scott hinges on the emancipatory uses of the French Revo-lution’s egalitarian proclamations. Meanwhile, the work of Jack R. Pole and Rogers M. Smith develops com-parable analyses of the uses of the U.S. Constitution in the United States.

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Juliette Rennes XIX

contravene that statement.44 In other words, the instituted inequalities do not accuse the egalitarian statement of being false. On the contrary, the egalitarian statement itself denounces the instituted inequalities as inconsistent with the requirements of a democratic society.45

Although this explanation formalizes the discourse used by actors to justify their own new demands by challenging the government over its own principles, it does not help us understand from our perspective why those particular dis-tinctions are being denounced as opposed to any others. Just as it is possible to identify arguments typical of disputes around the subject of equality, can pat-terns be identified from a viewpoint of the historical sociology of activism in the configurations of situations in which demands for formal equality emerge?

Comparing my own research on the controversy over women’s access to pro-fessions beginning at the end of the nineteenth century with the literature on contemporary controversies relating to the legal status of sexual minorities, a number of situational elements are clearly marked by major changes, whether these be the trans-nationalization of legal and activist spaces, the new role of the social sciences in defining the issues up for debate, or transformations of the “activism that produces and disseminates information,” especially via the Inter-net.46 Despite these transformations, this paper will present one of the aspects that seems to be shared by both of these cases, in which the protesters took advantage of a crisis in the system that justified these legal distinctions. This cri-sis was the result of the fact that a series of legal, State, and institutional mecha-nisms, along with social practices, which had previously always confirmed and attested to the different situations of the legally differentiated groups, were less and less able to fulfill that role. On the contrary, thanks to various events, social transformations and political or administrative needs that did not necessar-ily relate to an egalitarian objective, these mechanisms and practices began to produce (or reveal) characteristics shared by the legally differentiated groups.

To better explain this somewhat abstract proposition, the emergence of femi-nist demands in the nineteenth century can be linked to a weakening of legal logic based on the assumption of the incomparability of the sexes. Professional, administrative, and educational mechanisms contributed to the creation of categories such as schoolchildren, scholarship recipients, employees, taxpayers,

44. From this point of view, the demand for civil rights for animals, as mentioned above, over and above the fact that it is not expressed in a common language by the interested parties themselves, reconfigures this model because it entails a redefinition of what constitutes a legal subject (i.e., demonstrating that like humans, non-humans have the capacity for affection, rationality, or moral behavior, and making that com-monality a criterion for the attribution of rights).45. This is what Jacques Rancière describes as an excess of words over actions. See, for example, Jacques Rancière, Aux bords du politique (Paris: La Fabrique, 1998).46. Fabien Granjon, “Media,” in Dictionnaire des mouvements sociaux, eds. Olivier Fillieule, Lilian Mathieu, and Cécile Péchu (Paris: Presses de Science Po, 2009), 355.

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XX Legal Distinctions or Discriminations?

and made it possible for individual men and women to measure themselves against one another, using shared criteria (such as a diploma). In this way, those mechanisms effectively helped to destabilize the legal system used to justify gender-based distinctions. However, the creation of these common categories was not necessarily the result of egalitarian policies. To take the example of France, the creation of a category such as schoolchildren attending free, manda-tory, secular public schools, which included both genders, was initially intended to be used as a tool with respect to young girls for bolstering support for the republican system among the future mothers of French citizens, who would then go on to transmit those republican values to their children. In practice, this meant snatching girls out of the hands of the Church, which, as in in Belgium, Italy, Spain, and the United Kingdom, had played a central role in their educa-tion and instruction throughout the nineteenth century.47

Moreover, one of the unplanned effects of this republican socialization was that girls were increasingly espousing egalitarian and meritocratic principles on their own behalf. It was therefore also the result of changes in social structures. That is, the impoverishment of a portion of middle-class families led some of them, fearful of the threat of losing status, which would in turn be detrimental to their daughters without dowries, to take up egalitarian, meritocratic, and republican discourse, demanding access for their daughters to the diplomas and professions previously reserved for their sons. In other words, it was not the proclamation of equality that by itself engendered egalitarian demands but rather changes in the social positions of girls that led them to adopt the princi-ples put forward by the government and, so, to demand equality for themselves.

Furthermore, the equality measures obtained as a result of the various demands for access to various professions were far from causing a chain reac-tion for equality. That is, the logic of the precedent (i.e., demanding new rights by drawing analogies between these and previously won rights) was of course more of an argument used by actors advocating for their demands than a law of historical development. Thus, although a French woman could become a law-yer as early as 1900, feminists struggled in vain over the next 45 years to convert that success into a precedent that would give them access to the profession of judge and to the professions of notary and process server.48

The literature on equal rights activism for sexual minorities since the 1990s in Belgium, France, and Spain shows from a partially comparable perspec-tive that some social transformations narrowed the differences in situation that were subjectively felt by same-sex and different-sex couples, thereby con-tributing to the burgeoning crisis in the system that justified their different

47. Rebecca Rogers, L’éducation des jeunes bourgeoises en France au XIXe siècle (Rennes: PUR, 2007).48. The position of magistrate was opened up to women in 1946, and the positions of notary, process server, and court clerk in 1948.

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Juliette Rennes XXI

treatment.49 On the one hand, the AIDS epidemic increased the visibility of homosexual couples in long-term cohabitation (like in the normative model for heterosexual couples) but who found themselves in a legal vacuum when one partner was faced with the death of the other. On the other hand, changes affecting heterosexual couples also weakened everything that was supposed to attest to the difference between heterosexual and homosexual unions. These transformations, which owe a great deal to feminist struggles for equality and the freedom to make choices over one’s own body, include not only the legal non-differentiation between gendered conjugal and parental roles – made tan-gible with the replacement of paternal authority with parental authority and the abolition of gendered inequalities between spouses (which occurred in France between 1970 and 1985)50 – but also the growing dissociation between sexuality, procreation, and wedlock. These distinctions manifested concretely with an increase in sexual relations before and outside of wedlock and, thanks in part to the availability of contraception, a separation between sexual activity and procreation as well as in the separation between motherhood and conju-gality, for example in cases of medically-assisted procreation.

With this narrowing of the gap between the situations of heterosexual and homosexual couples, egalitarian policy directed at homosexuals (such as the decriminalization of homosexuality in France in 1981-1982) was only one aspect (among many) that helped highlight persisting forms of legal discrimi-nation in that a process of legal non-differentiation in certain domains made the remaining legal differences in others more visible. However, it was not the cause of the emergence of new, egalitarian demands. For example, it is known that demands for the right to marriage and parental recognition in the name of equal rights are far from having emerged at the same time or even in all of the countries in which homosexuality has been decriminalized.51 To put it differ-ently, an analysis of how actors, wishing to appropriate the “potential for insur-rection” entailed in the assertion of equality between and among all52, make use of a variety of social events, political and cultural opportunities not directly connected to the cause being defended as well as scattered legal precedents, lead-ing to a distancing from teleological interpretations of struggles for equality in which each struggle is seen as the necessary consequence of those preceding it.

49. See, for example, David Paternotte, “Sociologie politique comparée de l’ouverture du mariage civil aux couples de même sexe: Belgique, France, Espagne” (PhD dissertation, Université Libre de Bruxelles, 2008), and Araceli Muñoz, “L’ouverture du mariage aux couples homosexuels: Le cas espagnol. Une approche prag-matique du droit” (PhD dissertation, EHESS, 2010).50. Ursula Vogel, “Private contract and Public Institution: The Peculiar Case of Marriage,” in Public and Private: Legal, Political, and Philosophical Perspectives, eds. Maurizio Passerin d’Entrèves and Ursula Vogel (London/New York: Routledge, 2000), 177-99.51. Maks Banens and Rommel Mendès-Leite, Nouvelles visibilités, nouvelles discriminations? Rapport sur la reconnaissance légale des couples de même sexe et de l’homoparentalité dans cinq pays de l’Union Européenne (DREES-MiRe, October 2008).52. Étienne Balibar, Les frontières de la démocratie (Paris: La Découverte, 1992), 12 and 138.

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XXII Legal Distinctions or Discriminations?

Conclusion

Through this survey of the history of challenges made to legal distinctions, one can observe that disputes about equality are not based on challenges to existing differences in treatment whose unjust nature is gradually coming to light. Instead, each form of legal discrimination may itself succeed a previ-ous legal system of equality while its contestation is itself the fruit of complex interactions that were in no way a necessary occurrence. This does not mean that there is no common through-line in the history of struggles for equal-ity. However, this through-line is for each struggle re-articulated by the actors themselves who take the position of heirs to past egalitarian struggles in order to reveal similarities between present-day adversaries and the anti-egalitarians of yesterday, who themselves may not identify with those legacies.

Such parallels are also drawn by studies that in the social sciences aim to document patterns between different disputes over equality. Highlighting these intersections between activism and socio-historical surveys, especially where these pertain to the reiteration of argumentative systems, is in no way a denun-ciation of the misappropriation of sociological studies for activist purposes. Instead, it is a matter of focusing attention on what that type of work could contribute to itself. Far from revealing a historical law foretelling the defeat of opponents of equality in the short or medium term, a survey of disputes over equality would enable an analysis of how the law and social standards, them-selves the fragile results of power struggles and egalitarian fights, tend for a given period of time to constrain the argumentative forms of subsequent dis-putes without however determining the identities of the social actors involved or the configurations and end results of those struggles.

Juliette Rennes is a member of the Institut Marcel Mauss (EHESS/CNRS) and a pro-fessor at EHESS, where with Laure Bereni she co-directs the Masters program in Gen-der, Politics, and Sexualities. Her research focuses on the history of activism for legal equality and on theories of discourse in his-tory and sociology. Her major publications include Le mérite et la nature, une contro-verse républicaine: L’accès des femmes aux professions de prestige (1880-1940) (Paris: Fayard, 2007), and Femmes en métiers d’hommes (Cartes postales, 1890-1930).

Une histoire visuelle du travail et du genre (St-Pourçain, Bleu-autour, 2013). She has coordinated numerous special issues of journals notably on changes in the pamphlet genre (Mots: Les Langages du Politique 91 (2009) with Michel Hastings and Cédric Pas-sard, struggles relating to age discrimination (Mouvements 59 (2009), and the gendered and racialized body in politics (Raisons Poli-tiques 31 (2008) with Catherine Achin and Elsa Dorlin.

[email protected]

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