Urteil des Bundesgerichts vom 27. November 1990 i.S. Theresa Rohner und Mitbeteiligte gegen Kanton Appenzell I.Rh. (BGE 116 Ia 359)
Background
The tardy introduction of women’s rights to vote and be elected represents an inglorious chapter for Swiss legal culture. Voting rights were first demanded by women in the canton of Zurich on the occasion of the 1868 amendment of the cantonal constitution. The Swiss Association of Female Workers founded in 1890 and the Swiss Association for Women’s Voting Rights founded in 1909 fought for the introduction of active and passive voting rights for women. Around 1920 and between 1940 and 1950, referendums on the introduction of women’s suffrage failed in several cantons. In 1959, women’s suffrage failed in a referendum at the federal level. Between 1959 and 1972, all cantons except the two half-cantons of Appenzell introduced women’s voting rights at the cantonal level, followed by Appenzell A.Rh in 1989. In 1968, the Federal Council planned to sign the European Convention on Human Rights asking for a reservation on women’s suffrage. Associations of the old and new women’s movements protested and The Council of Europe refused such an exception. The constitutional amendment was presented to the people and the cantons again in 1971. This time, a majority of men eligible to vote were in favour of women’s suffrage – 53 years after Germany passed it, 52 years after Austria, 27 years after France and 26 years after Italy (https://hls-dhs-dss.ch/de/articles/010380/2021-01-26/).
There were various attempts to achieve political equality by having the courts adopt a modern interpretation of the constitution according to which the term “Swiss citizens”, who enjoy the rights to vote and be elected, should also be taken to include Swiss women, despite their not being specifically included and technically excluded according to German grammar. The Federal Supreme Court rejected a corresponding appeal by Ms Lehmann in 1923 and by Ms Unger in 1928. In 1956, 1,414 women from French-speaking Switzerland filed a complaint over being denied recording in the electoral register based on the principle of equality per the Federal Constitution. The Federal Supreme Court also rejected this complaint, arguing that such an interpretation would be contrary to the unambiguous historical will of constituent legislator, and that the amendment thus is up to the legislature and democrary (BGE 83 I 173). In 1963 the Federal Supreme Court refused to grant women from the cantons of Vaud, Neuchâtel and Geneva, where voting rights at the cantonal level had in the meantime been introduced, voting rights in the canton of Zurich if they had become residents of the canton by way of marriage (Margrith Bigler-Eggenberger, Justitias Waage – wagemutige Justitia?, Die Rechtsprechung des Bundesgerichts zur Gleichstellung von Frau und Mann, Basel/Genf/München 2003, pp. 15 – 17). After the canton of Appenzell I.Rh. failed again to introduce female suffrage in 1990, women and men from the canton brought another suit before the Federal Supreme Court. Citing the equal rights of men and women enshrined in the Federal Constitution since 1981, the Federal Supreme Court finally upheld the appeal.
Summary
As late as 1989, the constitution of the canton of Appenzell I.Rh. was understood by the cantonal authorities to mean that women were not entitled to vote on cantonal matters, nor in particular to participate in the Landsgemeinde assembly of the canton’s voters and electorate. The petition filed by women to be admitted to the Landsgemeinde was rejected by the Landsgemeinde in 1990. Women and men from the canton appealed to the Federal Supreme Court, claiming that the cantonal constitution violated the gender equality principle ensconced in the Federal Constitution. The Federal Supreme Court found that it was empowered to hear the case seeking to ascertain conformity with federal law, although the cantonal constitution previously had been guaranteed by the Federal Assembly in 1979 as the clause of gender equality had not been incorporated into the Federal Constitution until 1981. In particular, the Court was to rule what takes precedence: cantonal law governing cantonal and municipal voting and elections, or the gender equality clause of the Federal Constitution adopted in 1971 upon the introduction of women’s voting and election rights at federal level. The Federal Supreme Court confirmed in a general sense that legal norms should be interpreted in such manner as to correspond as closely as possible to contemporary circumstances and views. An earlier interpretation, therefore, would have to be abandoned if circumstances or views had changed. The understanding of the principle of gender equality too had been changing, the Court recognised. Federal legislators writing the constitution made an exception for cantonal law when women’s voting and election rights were introduced in the Confederation, granting it primacy out of a wish to avoid interfering “… in the traditional organizational autonomy of the cantons without compelling reasons”. Yet the principle of gender equality was enacted to eliminate unequal treatment of men and women on the Confederation and cantonal levels. The Confederation and cantons were supposed to ensure equality between men and women unless differentiation can be objectively justified or imposed, for biological reasons, for example. Regarding political rights no exception for cantonal law was to be recognized, as it was found that the exception clause in the constitution for cantonal laws governing elections and voting would not be rendered meaningless by upholding equal rights between men and women in cantonal elections and voting (in view, for example, of voting age differences among the cantons). While in the run-up to the vote on the gender equality law the Federal Council believed the cantonal exception would stand, opinions varied among legal scholars, who in time increasingly pointed out avenues for realizing equality between men and women with regard to cantonal voting and election rights. Thus the Federal Supreme Court viewed the aforesaid cantonal exception reservation as a secondary constitutional guarantee of cantonal sovereignty regarding the introduction of women’s voting and election rights in the Confederation, not as a primary guarantee superseding the gender equality clause later incorporated into the Constitution. As the Canton Appenzell I.Rh. had let a nine-years longwindow of time elapse since the introduction of gender equality in the Federal Constitution the Federal Supreme Court ruled with immediate binding effect that the terminology “citizens” and “other Swiss nationals” in respect of voting and election comprises both men and women.