Christine Corcos (LSU) has posted to SSRN an abstract of her article forthcoming in the Michigan State Law Review. Here it is:
On October 27, 2011, the heads of the British Commonwealth member states agreed to remove barriers to the succession of the first born child of the sovereign, whether male or female, to the throne of the United Kingdom. Such a rule, the rule of absolute, or full cognatic, primogeniture, ensures that the oldest child, regardless of gender, inherits the crown. The media reported little, if any, opposition to the decision.
In countries preparing for the advent of a female sovereign, matters can move smoothly once the decision is made. Assuming that all things proceed as expected, Sweden’s next sovereign will be female, in spite of the fact that the reigning monarch has a son. The adoption of an 1980 statute made Sweden the first European monarchy to recognize the principle of equal succession to the throne. While women had inherited the Swedish throne in the past, they had always done so in the absence of male heirs’ throne.
Since 1980 several other European monarchies have joined Sweden in making the change to cognatic primogeniture succession rules, and they have done so for legal reasons, in order to recognize that gender discrimination is impermissible in today’s society. Another reason for the relatively rapid change in attitude may be the increasing turn toward “commoner” brides among the royal families of Europe. Several heirs to the throne today do not simply choose non-royal brides — that is, wives who are not from other princely or royal houses. Increasingly they choose brides who are not even from aristocratic (noble) houses. Finally, as one commentator points out, “We are a long way from 1936 when Britain’s King Edward VIII abdicated because of government opposition to his marriage to Wallis Simpson, an American divorcee.” We have also come a long way from the late 1950s when Princess Margaret Rose of England, the present queen’s younger sister, gave up her chosen husband, Group Captain Peter Townsend, because his first marriage ended in divorce.
The shift to non-royal, non-aristocratic brides also tracks an overall societal change to more gender equality. Women demand equal pay for equal work, certainly in the Western world, and increasingly in other parts of the world. They have been entering male-dominated professions for over a century. They have shed old assumptions about what constitutes proper “female” behavior, particularly in the past thirty years, and along with it what constitutes proper “male” behavior. Women in the European constitutional monarchies under discussions have seen females become Prime Ministers, corporate executives, renowned sports figures, and millionaires. They compete daily and successfully with males in politics, business, the learned professions, sports, the arts, and other occupations.
In addition, changes in the laws of succession to various thrones have raised questions concerning rules of inheritance to aristocratic titles. Women in noble families are now objecting more and more vociferously to the idea that men should inherit the family title, in line with ideas of male primogeniture. In some cases, women have no claim on noble titles or entailed estates at all. In increasing numbers, these women now routinely turn to the legal system to challenge what they see as gender discrimination. Particularly in those monarchies which have now adopted a rule of absolute primogeniture, some women allege that a parallel scheme under which males should continue to inherit noble titles to the exclusion of or in preference to women is both illogical and inequitable. This article also examines challenges to the legal system that permits cognatic primogeniture in matters of succession to the throne in European constitutional monarchies but not to aristocratic titles.