Hymenal Politics: Marriage, Secularism, and French Sovereignty

Judith Surkis

In the late spring of 2008, a controversial marital separation case renewed debates about the place of “Muslims” in French society. A civil tribunal in the city of Lille granted an annulment to a certain Mr. C. because his spouse, Mrs. H., had lied about being a virgin. The case hinged on article 180, paragraph 2, of the French Civil Code, which allows for annulments based on “errors” as to the “essential qualities” of the person. Thus the court seemed to accept that a woman’s virginity — or rather its loss — could be seen as an “essential quality” of the person. When journalists revealed that the couple involved in the case was Muslim, widespread public controversy ensued. Politicians, media outlets, and associations across France denounced the decision as an insinuation of traditionalist and patriarchal Islam into France’s secular and egalitarian private law. Protestations by numerous imams that Islam does not in fact make virginity a requirement for marriage had little traction.1 By contrast, the shocked reactions of France’s political elite received extensive media coverage.

The secretary-general of the ruling conservative Union for a Popular Movement party (UMP), Patrick Devedjian, promptly denounced “the integration of the practice of repudiation into positive law” and called for an immediate appeal.2 The former Socialist candidate for the presidency, Ségolène Royal, described the decision, which was handed down by a female magistrate, as an unfortunate “movement backward in relation to the movement for women’s emancipation,” and a communiqué issued by the Communist Party described the court’s finding as “medieval.”3 One polemical columnist in a magazine devoted to defending French republican values, Marianne, figured the ruling to be a “forced marriage” between the secular laws of the Republic and those of “radical Islam.” These and many other reactions like them figured the decision to be a sexual violation of French law and a dangerous “regression” of its cherished secular values.4 In the eyes of such critics, the annulment had to be annulled for the purity, integrity, and modernity of French law to be maintained.

References to Islam were, notably, nowhere to be found in the text of the court’s initial decision. The finding was rather based on Mr. C.’s claim that his marital consent had been compromised because his fiancée had lied about what was, for him, an essential quality (i.e., virginity). He had demanded an annulment because “their matrimonial life began with a lie, which is contrary to the reciprocal confidence between spouses that is essential to conjugal union.” Technically, then, the legal argument was hinged not on Mrs. H.’s status as a virgin but rather on the fact that she had lied about being one. The court highlighted that in “acquiescing” to the annulment, Mrs. H. had tacitly acknowledged that virginity was an “essentially determining quality” of Mr. C.’s consent. As a result, there was no need to prove the validity or viability of Mr. C.’s claim.5 These legal nuances were, however, largely written out of the major media coverage of the case, which focused instead on politically potent depictions of Islam as sexually repressive and historically regressive.

And politically potent they were. News of the story quickly traveled beyond France’s borders; it was conveyed by wire services and foreign correspondents, hotly debated on blogs and in Internet chat rooms, across Europe, America, and the Maghreb. Within a week of its circulation, 150 deputies of the European Parliament signed a petition condemning the French court’s acceptance of virginity as an “essential quality”; they claimed that it was a “dangerous precedent that can only comfort fundamentalists in their archaic fight while the main barrier against this fanaticism should precisely be the law.”6 For these deputies, the court’s decision, by upholding the sacrality of the hymen, created a menacing confusion between inside and outside, secular modernity and “archaic” fundamentalism, legal reason and religious dogma. The language of the petition communicated a siege mentality. But from whom and what, exactly, were these European deputies seeking legal protection? After all, this case was brought by French citizens before a French court of law. The boundaries that French and European politicians sought to secure could not have been less clear. The repudiation of “repudiation” nonetheless provided moral and political clarity when other foundational distinctions — between national and supranational sovereignties, citizens and foreigners, public and private — no longer adhered.

The Lille marriage annulment did have one early and important supporter in then justice minister Rachida Dati, who viewed the decision to be in conformity with the Civil Code. Prominent jurists agreed with Dati’s formal assessment but nonetheless disagreed with the decision. An editorial in the jurisprudential Recueil Dalloz, for example, recognized its formal legality but insisted that “to leave out the religious sentiment which informs this judgment” represents an “abuse of technicality.”7

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Notes

This article has greatly benefited from the insights and suggestions of Talal Asad, Edward Baring, Éric Fassin, Peter Gordon, Janet Halley, Duncan Kennedy, Joan Wallach Scott, Dilip Parameshwar Gaonkar, and the Public Culture Editorial Board, as well as audiences at Brown University, Cornell University, Harvard University, the University of Michigan, and the University of Texas at Austin. All translations are my own unless otherwise indicated.

1. Sylvie Roux, “Virginité: Le jugement qui fait scandale” (“Virginity: The Ruling That Caused a Scandal”), Dépêche, May 31, 2008. For a historical discussion of Islamic jurists’ contestation of virginity testing, see Judith E. Tucker, In the House of the Law: Gender and Islamic Law in Ottoman Syria and Palestine (Berkeley: University of California Press, 1998), 67 – 68.
2. “Mariagé annulé pour non-virginité: L’UMP souhaite que des recours mettent un terme à une situation ‘très dérangeante’ ” (“Marriage Annulment for Non-Virginity: The UMP Hopes That an Appeal Will Bring an End to a ‘Very Disturbing’ Situation”), Nouvel Observateur, May 30, 2008.
3. Comments cited in “Mariage annulé: Les réactions” (“Marriage Annulment: The Reactions”), Nouvel Observateur, June 3, 2008, tempsreel.nouvelobs.com/actualites/20080529.OBS6207/?xtmc =reactionsmariageannule&xtcr=1.
4. Bénédicte Charles, “Ramadan l’avait rêvé, les juges l’ont fait” (“[Tariq] Ramadan Dreamt It, Judges Did It”), Marianne, June 2, 2008. See also Laurent Joffrin, “Régression,” Libération, May 31, 2008.
5. The record of the decision does not mention financial considerations, but it is worth noting that the French Civil Code law assumes that all marital property is held in common, unless a separate marriage contract is signed. In other words, the difference between a nullification of the marriage and a divorce with respect to property is considerable and may have figured in Mr. C.’s preference for annulment over divorce. A facsimile of the April 1, 2008, judgment is available at www.la-croix .com/illustrations/Multimedia/Actu/2008/6/3/mariageannule.pdf. The text was also published in Pierre Labbée, “La mariée n’était pas vierge” (“The Bride Was Not a Virgin”), Recueil Dalloz 184, no. 20 (2008).
6. “Mariage annulé: Les eurodéputés s’en mêlent” (“Marriage Annulled: European Deputies Get Involved”), Le Monde, June 6, 2008.
7. Félix Rome, “La mariée avait un vice caché” (“The Bride Had a Hidden Defect”), Recueil Dalloz 184, no. 22 (2008): 1490. For other formalist arguments, see Maître Eolas, “N’y a-t- il que les vierges qui puissent se marier?” (“Should Only Virgins Be Allowed to Marry?”), May 30, 2008, www.maitre-eolas. fr/2008/05/30/969-n-y- a- t- il- que- les- vierges- qui- puissent- se- marier; and Jean-Pierre Rosenczveig, “Mariage annulé: Persiste et signe” (“Annulled Marriage: Confirmed and Signed”), June 3, 2008, jprosen.blog.lemonde.fr/2008/06/03/mariage-annule- persiste- et- signe- 257/. For a critique of this formalism, see Christine Delphy, “Des préférences personnelles peuvent-elles être des qualités validées comme essentielles par le droit?” (“Personal Preferences — Can They Be Validated as Essential Qualities in the Law?”), Mouvements, June 10, 2008, www.mouvements.info/ spip.php?article287.