This page intentionally left blank constituting equality Gender Equality and Comparative Constitutional Law Constituting Equality addresses the question, how would you write a constitution if you really cared about gender equality? The book takes a design-oriented approach to the broad range of issues that arise in constitutional drafting concerning gender equality. Each section of the book examines a particular set of constitutional issues or doctrines across a range of different countries to explore what works, where, and why. Topics include (1) governmental structure (particularly electoral gender quotas), (2) rights provisions, (3) constitutional recognition of cultural or religious practices that discriminate against women, (4) domestic incorporation of international law, and (5) the role of women in the process of constitution making. Interdisciplinary in orientation and global in scope, the book provides a menu for constitutional designers and others interested in how the fundamental legal order might more effectively promote gender equality. Susan H. Williams is the Walter W. Foskett Professor of Law at the Indiana Uni- versity Maurer School of Law, where she also serves as the Director of the Center for Constitutional Democracy. Professor Williams graduated from Harvard Law School, where she served as the Supervising Editor of the Harvard Law Review and then clerked for Hon. Ruth Bader Ginsburg on the U.S. Court of Appeals for the District of Columbia Circuit (1985–1986). She has been a visiting faculty member at the University of Paris II (Panthe´on-Assas) and a Fellow at Wolfson College, Cambridge University, and at the European University Institute in Fiesole, Italy. Professor Williams is the author of Truth, Autonomy, and Speech: Feminist Theory and the First Amendment (2004). She has published numerous articles on issues related to freedom of speech, feminist theory, freedom of religion, and civil society. Her writing has appeared in the Stanford Law Review ,the University of Pennsylvania Law Journal,theBerkeley Women’s Law Journal,the Yale Journal of Law and Feminism,andtheMichigan Journal of Gender and Law. At Indiana Law, Professor Williams teaches Property, First Amendment Law, Feminist Jurisprudence, Constitutional Design, and a seminar on Comparative Constitutional Law on Gender Equality. Professor Williams is actively involved in constitutional advising for the Burmese democracy movement. She serves as a constitutional advisor to the Women’s League of Burma, the Federal Constitution Drafting Coordinating Committee, and the state constitution drafting committees of all of the states of Burma. In this capacity, she teaches workshops, produces educational materials, and works on drafting and revising constitutional language. Constituting Equality gender equality and comparative constitutional law Edited by SUSAN H. WILLIAMS Indiana University CAMBRIDGE UNIVERSITY PRESS Cambridge, New York, Melbourne, Madrid, Cape Town, Singapore, São Paulo, Delhi, Dubai, Tokyo Cambridge University Press The Edinburgh Building, Cambridge CB2 8RU, UK First published in print format ISBN-13 978-0-521-89836-2 ISBN-13 978-0-511-59638-4 © Cambridge University Press 2009 Information regarding prices, travel timetables, and other factual information given in this work are correct at the time of first printing, but Cambridge University Press does not guarantee the accuracy of such information thereafter. 2009 Information on this title: www.cambrid g e.or g /9780521898362 This publication is in copyright. Subject to statutory exception and to the provision of relevant collective licensing agreements, no reproduction of any part may take place without the written permission of Cambridge University Press. Cambridge University Press has no responsibility for the persistence or accuracy of urls for external or third-party internet websites referred to in this publication, and does not guarantee that any content on such websites is, or will remain, accurate or appropriate. Published in the United States of America by Cambridge University Press, New York www.cambridge.org eBook ( NetLibrar y) Hardback This book is dedicated to Justice Ruth Bader Ginsburg, who has been for me, as for so many others, a mentor, a role model, and an inspiration. Contents List of Contributors page ix Acknowledgments xv Introduction: Comparative Constitutional Law, Gender Equality, and Constitutional Design 1 Susan H. Williams section one: structure 1 Gender Quotas in Politics – A Constitutional Challenge 29 Drude Dahlerup and Lenita Freidenvall 2 Equality, Representation, and Challenge to Hierarchy: Justifying Electoral Quotas for Women 53 Susan H. Williams section two: rights 3 More than Rights 75 Helen Irving 4 Perfectionism and Fundamentalism in the Application of the German Abortion Laws 93 Mary Anne Case 5 Moral Authority in English and American Abortion Law 107 Joanna N. Erdman vii viii Contents section three: culture/religion and gender equality 6 Must Feminists Support Entrenchment of Sex Equality? Lessons from Quebec 137 Beverley Baines 7 Deconstructing the East/West Binary: Substantive Equality and Islamic Marriage in a Comparative Dialogue 157 Pascale Fournier 8 Conflicting Agendas? Women’s Rights and Customary Law in African Constitutional Reform 173 Aili Mari Tripp 9 Gender Equality and the Rule of Law in Liberia: Statutory Law, Customary Law, and the Status of Women 195 Felicia V. Coleman section four: constitutions and international law 10 Constitutional Incorporation of International and Comparative Human Rights Law: The Colombian Constitutional Court Decision C-355/2006 215 Ver ´ onica Undurraga and Rebecca J. Cook 11 Guatemalan Transnational Feminists: How Their Search for Constitutional Equality Interplays with International Law 248 Christiana Ochoa section five: women in the process of constitution making 12 Women in the Constitutional Drafting Process in Burma 273 Thin Thin Aung and Susan H. Williams 13 Founding Mothers for a Palestinian Constitution? 290 Adrien Katherine Wing and Hisham A. Kassim Conclusion: Gender Equality and the Idea of a Constitution: Entrenchment, Jurisdiction, and Interpretation 312 Vicki C. Jackson Index 351 . materials, and works on drafting and revising constitutional language. Constituting Equality gender equality and comparative constitutional law Edited. This page intentionally left blank constituting equality Gender Equality and Comparative Constitutional Law Constituting Equality addresses the question,