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BORROWING FROM THE WOMEN'S MOVEMENT 'FOR REASONS OF PUBLIC SECURITY': A STUDY OF SOCIAL MOVEMENT OUTCOMES AND JUDICIAL ACTIVISM IN THE EUROPEAN UNION*

Elizabeth Holzer†

Can an elite-sponsored outcome be a social movement outcome? In Kreil v Germany, the European Court of Justice issued a judgment hailed as a feminist victory, censuring Germany’s exclusion of women from the military. But the women's movement did not sponsor the case; it was an organizational achievement for the nascent court that extended its jurisdiction to public security while preserving its legitimacy among potentially non-cooperative Member States. With this case, I reassess movement-elite relations in the context of past protests that forged discursive resources. The women's movement did play an important role in this case: the court relied on discursive resources from past feminist activism to legitimize its decision and frame it as a matter of women's rights, drawing attention away from its uncertain jurisdiction. I present a model of "borrowing" from movements, a relationship distinct from alliances and cooptation, to show how elite-sponsored outcomes can still be movement outcomes.

INTRODUCTION

When we hear of legal victories for women's rights, we often imagine them to be victories of the women's movement. Many times they are. Movement activists pursue legal strategies even as scholars debate the value of their legal victories (for a classic debate in sociolegal studies, see McCann 1992, 1994, 1996; and Rosenberg 1991, 1996). But in some cases, elites use movement discourse to cloak their struggles in movement guises. Are these elite-sponsored outcomes social movement outcomes? Researchers who adopt different models of causality to explore movement outcomes would disagree on the answer to that question. Some maintain a strict criterion of direct effect, a strategy that has been effective in studying policy outcomes (Amenta, Bernstein, and Dunleavy 1994; Cress and Snow 2000; Burstein and Linton 2002). But other scholars have shown that adding indirect effects reveals previously overlooked cultural outcomes (Eyerman and Jamison 1998; della Porta 1999; Meyer 1999). In this article, I explore social movement outcomes by studying not movement actions but movement

* The author is grateful to those who took the time to read drafts of this article and offer thoughtful critiques: Daniel J. Myers and the anonymous reviewers at Mobilization, Jessica Brown, Wendy Christensen, Ute Gerhard, Katja Guenther, Sandy Levitsky, Shauna Morimoto, Pam Oliver, Gay Seidman, Susan Silbey, and Katherin Zippel. Several others offered helpful research advice along the way, including Vicki Hill, Catherine Hoskyns, Sally Kenney, Mark Pollack, Suse Tönsmann, Angelika von Wahl, and Telle Zoller. This project also benefited from insightful comments from the participants of the April 2003 National Feminisms in a Transnational Arena conference at University of Wisconsin, and participants of the May 2002 Impossible Citizen conference at University of Minnesota. Insightful comments also came from the ever-supportive members of FEMSEM. A grant by the Center for German and European Studies at the University of Wisconsin-Madison provided valued financial support. This article has had many incarnations, and the author is deeply indebted to Myra Marx Ferree, who has supported the project through every one of them. † Elizabeth Holzer is a Ph.D. student at the University of Wisconsin-Madison. She currently is in the Buduburam Refugee Settlement, Ghana, studying political practices and post-conflict democracy. Please direct correspondence to Elizabeth Holzer, University of Wisconsin-Madison, Department of Sociology, 1180 Observatory Drive, Madison, WI 53706-1393, email: [email protected].

© 2008 Mobilization: The International Quarterly 13(1):

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resources. I show how focusing on resources can foster a nuanced analysis of movement-elite relations in elite-sponsored outcomes.

Tanja Kreil v. Federal Republic of Germany, 1 the landmark European Court of Justice (ECJ) decision that challenged Germany’s exclusion of women from the military, was an elite-sponsored outcome. Though hailed as a victory for women's rights, feminists did not rally for Kreil. Thus it cannot be labeled a direct success of the movement. The outcome was a triumph for the nascent court that effectively extended its authority to issues of public security while preserving its legitimacy among suspicious and potentially non-cooperative Member States. But as I show, the women's movement still played an important indirect role in the outcome because the ECJ relied on discursive resources established in prior feminist activism to bolster the legitimacy of its decision and to frame the case to draw attention away from its uncertain jurisdiction.

This outcome has important implications for the study of movement influences and movement-elite relations. Successful movements consecrate words with path-defining meaning, imbuing phrases with ideological force—social movements create discursive resources. If we hold sight of the movement origins of discourse, acknowledging that the transformation of "fighting words" (Steinberg 1999a) into commonplace assumptions can be a social movement outcome, we can observe more of the outcomes of cultural protest.

First, by creating resonant discourse, movements make valuable resources available to elites, not just themselves and other challengers. In the political mediation model, researchers argue that movement success is mediated by elites whose support or opposition to movement policy goals is critical to the outcome of protest (Soule and King 2006; Soule and Olzak 2004; Burstein and Linton 2002; Skrentny 2006; Amenta, Caren, and Olasky 2005; Amenta et al. 1994; Cress and Snow 2000). This article illuminates one facet of the mediation process, the exchange of discursive resources, and shows how political language matters. It pushes the mediation model to give more attention to the nuances of cooptation and alliance-making by offering a third model of relations: borrowing.

Second, when movements endow oppositional discourse with resonance, the cultural outcome also has lasting effects on structural opportunities for future action. Newly resonant discourse (made valid to an audience) lasts beyond the original protest event. Activists can institutionalize discourse to make it part of a discursive opportunity structure, "institutionally anchored ways of thinking that provide a gradient of relative political acceptability to specific packages of ideas" (Ferree 2003: 309). This constrains elites and challengers by making some ideas more or less thinkable and potent.

Finally, this article follows Burstein (1991) and Barkan (2006), in that it brings into social movement theory several salient insights from sociolegal studies, insights that can inform social movement research on legal protest. In judicial decision making, complex social processes influence court outcomes (George and Epstein 1992). Courts are not just arenas in which activists and officials clash, but institutional actors with independent interests in institutional development (Shaw 2001; Hagan, Levi, and Ferrales 2006).

I reassess movement-elite relations by situating their interaction in the context of past protest and considering discourse in evaluating elite and movement resources and resource needs. I use the transnational European feminist campaigns for equal treatment as the original protest events that produced the widely resonant women's equality discourse and the EU gender equality law. My focus is not these original successes, ably chronicled elsewhere (Hosykns 1996; Berkovitch 1999; Rupp 1997), but the aftermath of protest. I selected an event indelibly shaped by the post-protest landscape, the women's equality case Kreil. The case illustrates not the subsequent ease of feminist protest in the EU as some suggest (Wobbe 2003), but the value of movement resources for elites who operate in discursive landscapes altered by protest.

Interviews reveal that feminist social movement organizations (SMOs) did not drive this case, and prior case law shows that the ECJ achieved a major jurisdictional victory. Therefore,

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this case calls for a new model of movement-elite relations that recognizes the benign, indirect exchanges between needy elites and resourceful social movements. In this model, I apply Marshall's (2001) concept of "borrowing" oppositional consciousness to discursive exchanges between elites and movements to argue that elites may borrow movement discursive resources, using those resources for their own ends without the direct ties of alliances or the destructive consequences of cooptation.

POLITICAL OPPORTUNITIES IN THE AFTERMATH OF PROTEST

Successful social movements transform political landscapes to change the opportunities not only for future challengers (Meyer 1999), but also for elites. The methodological and analytic challenges of studying movement outcomes should not obscure this basic insight (Gamson 1990; Giugni 1998; Cress and Snow 2000; Amenta et al. 2005; McVeigh, Neblett, and Shafiq 2006). Increasingly, research on movement outcomes explores the cultural changes that derive from protest. Beyond the institutional changes in policy, more subtle changes to discourse and frames often emerge (Ferree 2003; Giugni 1998; Tarrow 1998; Cress and Snow 2000; della Porta 1999). Indeed, cultural outcomes, though often indirect, can be the most dramatic as "cultural effects seep into the social lifeblood in often unintended and circuitous ways" (Eyerman and Jamison 1998: 6).

Studying cultural outcomes poses several challenges. Cultural change is often more difficult to measure than policy outcomes (Giugni 1999). It can be hard to identify a movement’s effects on frames and discourses when the existing meaning systems from which they derive are constantly changing (Taylor and Whittier 1995). Also, cultural resources, by virtue of their publicness, escape the movement’s control (Williams 1995).

Despite these challenges, many studies have successful illuminated the role of social movements in cultural change. Researchers have shown how discursive work can produce movement outcomes visible in the presence of new discourses and the changes to the discursive opportunity structures—for example, by naming issues as problems, movements remake taken-for-granted arrangements into arenas of contention (Jenson 1995; Fraser 1989). Meyer argues that peace movement activists shaped political culture to make aggressive security policy "politically untenable," an action that contributed to the end of the Cold War (1999: 184). Similarly, feminist activism in Europe has made active opposition to the principle of women's equality untenable for politicians in Germany.

RESOURCEFUL MOVEMENTS AND NEEDY ELITES

Researchers have explored how financial or human resources contribute to movement outcomes (McCarthy and Zald 1977; Cress and Snow 1996). But the research on cultural tactics justifies the inclusion of another type: discursive resources. By discursive resources, I mean specific vocabularies imbued with systems of meaning that actors can use to accomplish strategic action.

Discourses can be resources because actors deploy discourse to accomplish strategic action (Sewell 1992). Actors use discourses like slang and jargon to signify group membership and exclude outsiders. With discourse, actors can rally support, or undermine protest (for example, Limbaugh’s "feminazi," see Ferree 2005). Discourse is a stratified, heterogeneous resource "available to members of a given social collectivity in pressing claims against one another" (Fraser 1989: 164).

The material connotations of the word resource makes it difficult for some to consider discourse a resource. Steinberg (1999b: 742-43), for example, argues that resources are commensurable and fungible, while discourse is contextual, public and emergent. In this

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materialist framework, one might also argue that a resource is proprietary, while discourses are nonexclusive. But discourse can be commensurable, fungible or proprietary, and it can possess strategic value. Consider the example of corporate discourse found in Nike’s "Just Do It" campaign. This trademarked phrase is subject to market exchange, and so is commensurable and fungible. Or consider shibboleths,2 terms that possess both proprietary and strategic value. Movement discourse is public, but so are many material resources.

One can talk meaningfully about "a social movement's discourse" by considering movements as creators of discourses. A movement can create discourse by coining a phrase like "environmental racism" or "civil rights" and investing it with widely shared meaning through activism. Movements also can create discourse by redefining existing discourses in light of movement ideologies. For example, the women's movement took the phrase "equal treatment" already imbued with liberal values for men and extended it to women—"equal treatment for men and women." In the era when liberal equality meant equality for men, and when even activism for women's suffrage relied on discourses of the special virtues of women as mothers, the creation of women's equality discourse was a major innovation (Berkovitch 1999). As the women's movement succeeded in political and legal campaigns to institutionalize the "equal treatment of men and women" in law in the EU (Hoskyns 1996) and elsewhere, women's equality discourse became a widely resonant and valuable resource.

Both movements and elites wield discursive resources, but courts are elites that are highly likely to use movement discourse. A court relies on discursive strategies because the law is a discursive domain (Rollins 2002). For example, Richman (2002) describes how a judge in a lesbian custody case constructs the category of "non-parent" to exclude a non-biological partner because of the absence of "natural" or "legal" links to a child. Without economic or physical sanctions, courts rely on norms of obedience to enforce judgments, and courts must preserve their legitimacy to sustain these norms (Rasmussen 1986). Institutional legitimacy can be cultivated by discursive strategies (Fligstein 2001).

One way that elites and movements use discursive resources is in framing. Framing research explores the ways that desired meanings are cultivated in protest (for critical reviews, see Benford 1997; Steinberg 1998; Oliver and Johnston 2000). Frames are "'schemata of interpretation' that enable individuals 'to locate, perceive, identify and label' occurrences within their life space and world at large. By rendering events or occurrences meaningful, frames function to organize experience and guide action, whether individual or collective" (Snow, Rochford, and Worden 1986: 464, citing Goffman 1974: 21). Social movement researchers do not always distinguish between frames and the discourse used to construct a frame (see, for example, Babb 1996). But the general insight of the framing literature is useful: actors construct and strategically disseminate schemas of meaning to shape interpretations of social phenomena, pushing some aspects of an event to the forefront and obscuring others. This is applies to elites as well as protesters (Neuman 1998).

Research shows that existing political landscapes constrain the effectiveness of frames and discourse (Koopmans and Olzak 2004; Noonan 1996; Diani 1996). For example, Ferree (2003) finds that court decisions in Germany and the United States institutionalized two separate discourses on abortion, leading to major divergences in abortion policy and protest in the two countries as different discourses gained resonance in the national legal spheres. But the nature of the institutions that comprise political landscapes and how these relate to social movements is still highly disputed. In the political opportunity structure (POS) tradition, researchers approach political institutions from a structural angle, often drawing attention away from elite actors as such3 (but see Giugni, Koopmans, Passy, and Statham 2005; Jenkins, Jacobs, and Agnone 2003; Tarrow 1998; Jenkins and Perrow 1977). In contrast, the political mediation model looks at institutions as elite actors, arguing that the effectiveness of particular movement tactics is mediated by elites (Soule and King 2006; Soule and Olzak 2004; Burstein and Linton 2002; Skrentny 2006; Amenta et al. 2005; Amenta et al. 1994;

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Cress and Snow 2000). But the political mediation model, like the POS tradition, does not always take into account the elites' own interests and limitations.

Research on social movements and law demonstrates how focusing only on the structural aspects of political institutions, or failing to interrogate the interests of elites, can be problematic. In social movement studies of legal protest, the organizational and professional factors of courts and judges are rarely included in analysis (Burstein 1991; Zemans 1983; Barkan 1984, 2006; Kane 2003). But sociolegal research has shown the significance of judges' ideological and policy commitments (Segal and Spaeth 1993; Hausegger and Haynie 2003); strategic behavior (Cameron, Segal, and Songer 2000); alliances with other political elites (Belge 2006); public opinion (Mishler and Sheehan 1993); and organizational design (Seron 1990). For example, in a study of racial discrimination cases after Brown v. Board of Education, Romero (2000) found that the effects of judges' ideology and the courts' institutional design outweighed the effects of public opinion—courts with predominately liberal judges were more likely to issue decisions supporting racial minorities irrespective of the public opinion at that time. Though the relative weight of political factors, such as alliances, versus legal factors, such as case precedent, is still under debate, the consensus is that the litigation outcomes cannot be understood solely by the facts of the case without reference to the practices of judicial decision making (Knight and Epstein 1996; Howard and Segal 2002; Johnson 1987; Dworkin 1986).

Like other institutions, courts develop and stagnate in ways that influence their decisions and activities. Courts reach for jurisdiction to new areas (Arnull 1999), and their workloads and resources grow and decline (Hagan et al. 2006). Movements may have a direct role in this process. Hagan and colleagues (2006) found that feminist and human rights activists helped establish the International Criminal Tribunal for the former Yugoslavia, though they were later pushed aside in favor of state support. Social movements also may play indirect roles in institutional development more broadly (Clemens 1993). Haveman and Parachuri (2007), for example, present the diffusion of Progressive values of efficiency, rationality, and social engineering through bureaucracy to the thrift industry as an indirect effect of the Progressive movement. Actors also may use discursive strategies in institutional change, as institutional theorists have shown (Lounsbury and Glynn 2001; Fligstein 2001). Yet an institution's adoption of discourse and frames should not be mistaken for the diffusion of values. Discursive resources may be co-opted by institutions who leave the movement’s values by the wayside (Stratigaki 2004), or elites may use movement discourses consistent with movement values, but profess these values only until they have accomplished their ends.

BORROWING MOVEMENT DISCOURSE

Discursive exchange happens in movement-elite relations, but these relations take different forms. Many researchers have explored different elite-challenger relations under the rubric of cooptation and alliance. In this section, I argue that we should consider a third type of relation: borrowing.

The term cooptation commonly refers to a parasitic relation between elites and social movements in which the elites undermine protest that might unsettle them, tainting activists' efforts and leaving their goals unmet (Haines 1984; Michels 1911; Piven and Cloward 1977). Michels (1911) gives the classic account of this phenomenon, arguing that social transformation cannot succeed through democratic political process because the organizations that activists form become conservative once they achieve a measure of political power (but see Sherman and Voss 2000). Cooptation connotes a destructive relation between political elites and social movements. Stratigaki (2004) shows how cooptation of the idea of "work-family balance" in the EU commission shifted policy from a concern with women and men

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sharing family responsibilities to a focus on helping women "manage their dual role," destroying the feminist content originally in this idea.

Political mediation research focuses on alliances of movements and elites to show how collaborations with elites can help a movement. Santoro and McGuire (1997) argue, for example, that activists with insider status drove the comparable worth campaign to success. An alliance here is a direct, intentional collaboration of parties with shared goals. The movement must see the insiders as sharing their goals, and "state actors must in turn see a challenger as potentially facilitating or disrupting their own goals—for example, augmenting or cementing electoral coalitions, gaining in public opinion, or increasing support for the mission of governmental bureaus" (Amenta et al. 2005: 519).

But what if the movement still does not see elites as friendly insiders even when elites are not undercutting the meanings the movement has given its words? Not all discursive exchange happens through alliances and cooptation. Sometimes elites borrow from movements, using movement discourse in campaigns not pursued by the movement, but without hurting movement interests. To borrow movement resources is to engage in a nondestructive exchange, using the movement resources without precluding the movement’s continued or future use. I take the phrase from Anna-Maria Marshall's (2001) essay on the creation of U.S. sexual harassment law. Marshall argues that trial lawyers used oppositional frames from the civil rights movement to establish U.S. sexual harassment case law. She calls this "borrowing"—a turn of phrase that is evocative of the purposeful, non-predatory but appropriative nature of the user’s claim. Unlike the notion of cooptation, borrowing does not suggest harm to the movement. Unlike the notion of alliance, borrowing suggests that elites act one-sidedly to use movement resources for their own goals, independent of a movement’s objectives.

Movement Outcomes and Elite Reformers

One obstacle to studying movement outcomes in a relational approach is the commonly raised concern: "How can we determine whether the observed change is the produce of movement activities or the result of a reformist move by the political authorities?" (Giugni 1999: xxiv). This concern contains an implicit dichotomy—either the movement succeeded in opposition to elites or the elites were responsible for the change. But this is a false dichotomy. Instead, we should, as Giugni advocates, study the elites and movements together, but note the gradations in elite-movement relations.

One way to distinguish the contributions of movements and elites is to study the resources used to produce social change. Movement outcomes stem not only from movement activities but also from resources that movements create or bring into the political arena. One reason that elites ally with movements is for their resources (Amenta et al. 2005). Thus one can explore movement outcomes by tracing the trajectory of movement resources.

To see the significance of a movement's discursive resources in an elite-sponsored outcome, one must acknowledge the central role of actors in cultural exchange. World culture has become increasingly liberal in the classical sense, but the mechanisms by which liberal norms spread through the world polity and become localized are less clear (Thomas et al. 1987; Boli and Thomas 1997). The cultural entrepreneurs who were instrumental in the creation and dissemination of related cultural resources—including social activists—may go unnoticed. Skrentny (2002) for example argues that nondiscrimination became a "world right" in the 1960s, and after observing that new groups gained nondiscrimination rights based on elites' perceptions of what served national security, concludes that social movements did not have a key role in these later outcomes. Yet what meanings the "world polity" holds derive from the struggles of activists, state officials and other cultural entrepreneurs (Keck and Sikkink 1998). Feminists led the successful struggle to make "women's equal rights" a key frame in these global liberal discourses (Berkovitch 1999; Edwards 2002). The specific elites

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and other challengers who take up these resources and the uses to which they put them remain to be analyzed in each particular case.

Elites who borrow movement resources may not consider themselves as having a relationship with the movement, even though they are indebted to the movement for the resources. Nor are these resources expected to be returned after use. The term should not be used to construe a conscious interaction or reified resource but to highlight a potent, gossamer relation between elites and movements as each pursues its own interests.

THE CASE: GUNS, GERMAN WOMEN, AND EQUAL EMPLOYMENT

In 1996, a 23-year-old German woman named Tanja Kreil applied for the position of electronics engineer in the German military in an effort to get a job. The military recruiters rejected her application, telling Kreil that the German Constitution did not permit women to hold any military job involving weapons. The Regulations on Soldiers’ Careers states that "women may enlist only as volunteers and only in the medical and military music services" (La Pergola 1999:pt. 3). Even when all citizens are required to serve the country in a state of defense, the Constitution says, "[women] may on no account render service involving the use of arms" (La Pergola 1999:pt. 4).

"It made me feel like I was living in the Middle Ages," said Kreil, and she brought suit in the German Constitutional Court (Finn 2001). In 1998, the national court sent the case to the European Court of Justice. The case raised two legal questions: does German policy violate Community gender equality law and does the ECJ have jurisdiction over public security? Kreil argued that the exclusionary policy violated the Equal Treatment Directive, a central tenet of Community sex equality law put into place through concerted feminist efforts, but she did not raise the issue of the ECJ’s jurisdiction.4 Germany countered with two lines of reasoning. First, Germany argued that the composition of a Member State’s military did not fall under the ECJ’s jurisdiction being a part of the Member State’s zone of sovereignty—this was the appeal to the "public security derogation."5 Second, Germany argued that its policy met criteria for two loopholes in the Equal Treatment Directive: the policy protected women and women were not fit to perform the tasks required of military combat service.6

In 2000, the ECJ ruled in favor of Kreil. Echoing the advocate general’s logic (La Pergola 1999), it argued that Germany violated the Equal Treatment Directive and declared that women must be allowed to carry arms in the military (ECJ 2000). As a women's rights case, the judgment enforces women's equality in military service. As a jurisdictional case, it makes a strong claim to authority over public security.

ALTERNATIVE ENDINGS FOR THE KREIL CASE

Many responded to Kreil with marked lack of surprise, even a touch of scorn that Germany put off of this desegregation for so long: of course, the court decided in favor of Tanja Kreil; of course, Germany would uphold the judgment. But as in Brown v. Board of Education (of course, separate is not equal), commonsense obscures fierce political debate. Kreil could have ended differently. The ECJ could have ruled for Germany, but affirmed its own jurisdiction (see, for example, Johnston v. the Royal Ulster Constabulary7). The Kreil court could have backed away from jurisdiction, declaring that the public security derogation applied (see, for example, Dory v. Federal Republic of Germany8). It did neither.

Likewise, the women's movement relationship to the case could have been different. A feminist organization could have actively supported Kreil, like the National Organization for Women (NOW) supported Shannon Faulkner in her case against a U.S. military academy, making this an alliance. Or feminists could have opposed the case. Among radical feminists,

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military inclusion is not a "feminist" call; they believe that women's participation in the military strengthens a patriarchal institution (Enloe 1983; D'Amico 1996; Feinman 2000). German feminists shared this radical critique and may have suspected co-optation, though did not see enough threat to actively oppose Kreil (Tönsmann 2001). Even a liberal feminist organization could take a stance against military inclusion; for example, in Rostker v. Goldberg,9 NOW argued that the principle of gender equality did not mandate expanding the draft to women.

Germany might also have opposed the court’s judgment. The German Constitutional Court has explicitly condemned some efforts of the ECJ to expand its jurisdiction.10 Discreet noncompliance by Member States also is a problem for the court. Negotiators of the Treaty on European Union acknowledged the issue of noncompliance, adding an treaty article (Article 228) that gave the court the authority to use penalty payments to enforce its judgments in the face of persistent noncompliance.

Thus, the Kreil case presents a puzzle: how did a court that was insecure in its jurisdiction over the military, inconsistently supportive of women's equality, and without backing from feminist SMOs, produce a decision hailed as a landmark in women's rights and quietly acknowledged as a successful expansion of jurisdiction over the military?

HISTORICAL-INSTITUTIONAL CONTEXT

The European Court of Justice is the final arbiter of EU law, but it is encumbered, like other elites, by the EU political landscape (Shaw 2001; Weiler 1999). Still, the court has had considerable success in expanding both its mandate and European integration (Brown and Kennedy 2000). The primary way that the ECJ accomplishes this dual agenda is by extending the jurisdiction of EU law through its judgments, much like the U.S. Supreme Court under John Marshall championed its own powers and the cause of federalism in Marbury v. Madison and McCulloch v. Maryland.

1NOTES

? C-285/98, Kreil v Federal Republic of Germany, [2000] ECR I-69 (Kreil).2 Originally from the Bible: "The Gileadites seized the fords of the Jordan and held them against Ephraim. When any Ephraimite who had escaped wished to cross, the men of Gilead would as "Are you an Ephraimite?" and if he said, "No," they would retort, "Say Shibboleth." He would say "Sibboleth," and because he could not pronounce the word properly, they seized him and killed him at the fords. At that time forty-two thousand men of Ephraim lost their lives." (Judges 12, The Revised English Bible, 1989)3 Political opportunity structure is "the broader set of political constraints and opportunities unique to the national context in which [the social movements] are embedded"" (McAdam, McCarthy, and Zald 1996: 3). See Meyer 2004 for a review.4 Directive 76/207/EEC, the "Equal Treatment Directive," guarantees "the principle of equal treatment for men and women as regards access to employment, vocational training and promotion, and working conditions" (La Pergola 1999: pt. 1).5 Community law frequently includes exceptions to the law called "exemptions" or "derogations." The public security derogation derives from Articles 36 (30 EC), 48 (39 EC), 56 (46 EC), 223 (296 EC), and 224 (297 EC) (La Pergola 1999). See Trybus (2002) for a detailed discussion of public security law.6 One of the exceptions, Article 2(3), states that women can be excluded from jobs to protect them, particularly for the "special demands" of motherhood. The second exception is Article 2(2), which states that women can be excluded from a position if sex constitutes a determining factor to perform that activity.7 Case 222/84 Johnston v. the Royal Ulster Constabulary [1986] ECR 1651 (Johnston). Also Case C-273/97 Sirdar v. The Army Board and Secretary of State for Defence [1999] ECR I-7403 (Sirdar).8 Case C-186/01, Dory v Federal Republic of Germany [2003] ECR I-2479 (Dory). See also Case 72/83 Campus Oil Limited v. Minister for Industry and Energy [1984] ECR 2727; Case 367/89 Criminal Proceedings Against Aimé Richardt and Les Accessoires Scientifiques [1991] ECR I-4621.9 Rostker v. Goldberg, 448 U.S. 1306 (1980).10 37 BVerfGE 271 [1974] Solange I, 75 BVerfGE 223 [1987] Kloppenburg, 89 BVerfGE 155 [1993] Maastricht (cited in Scheuing (2004).

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As one of the new supranational political elites driving European integration, the ECJ needs support for its evolving authority. This can be an opportunity for social movement activism; Zippel, for example, argues that "Emergent supranational organizations…tend to be less fully institutionalized than nation-states; therefore, they often provide a more open and flexible field of opportunities for influencing policy" (2004: 58). But the field of opportunity exists for political elites as well, and, indeed, the contested nature of their institutional mandates drives these elite supranational organizations in their own organizational activism.

Many have questioned the legitimacy of the ECJ’s activities in the political realm (for opposing views, see Arnull 1999; Rasmussen 1986), but the ECJ has withstood such criticisms, enlarging its organizational mandate considerably in politically savvy, if uneven campaigns. The public security campaign is one of these instances. EU legal scholars have pointed to some trends in the ECJ’s campaigns. The court is much more likely to be activist when not faced with the imminent threat of retaliation (Gibson and Caldeira 1995). It has backed away from issuing strong decisions when it knows it would face strong opposition from a Member State (Hoskyns 1996). Member States have not been equally supportive of the ECJ or integration more broadly. France and Germany have generally been considered much more invested in the European Union than the UK, which refused to adopt the euro, for example. Still, even in Germany, support has varied according to the administration in power. The Struggle over Public Security

To understand its significance, Kreil must be situated in the context of the ECJ’s jurisdictional struggles. Treaties provide the ECJ with the power to assess whether a Member State meets its treaty obligations, assess the legality of some Community acts, declare that some institutions unlawfully failed to act, respond to a national court's request to review a case that deals with Community law, and respond to claims made against the Community (Arnull 1999). The court has struggled to expand its jurisdiction beyond this mandate, establishing other powers through case law, including the principle of direct effect and the supremacy of Community law (Brown and Kennedy 2000).

Several important treaties excluded military affairs from ECJ jurisdiction in exemptions collectively referred as the "public security derogation." The founding 1957 Treaty of Rome, primarily a commercial agreement, exempted military affairs from EU law. The 1992 Treaty on European Union, which included a section on common foreign and security policy, also excluded military affairs, reaffirming the public security derogation.11

The ECJ pursued a slow, uneven campaign to curtail the public security derogation by extending the application of the Equal Treatment Directive to national militaries (Trybus 2003). The gradual extension of case law is one of the court’s most effective strategies (Garrett, Kelemen, and Schulz 1998). The focus of this article, the Kreil case, is significant in this campaign because it is the first negative judgment in the area of public security ("negative judgment" meaning a decision against the Member State).12

Women's Rights in the EU: Past Protest and Political Expediency

One also needs to consider the ECJ’s past—quite unreliable—support for women's rights in analyzing Kreil. Feminist legal scholars debate the ECJ’s record (for opposing views, see Ellis 1991; Shaw 2001). The court's record in sex equality cases could best be described as inconsistent. While it has enforced the Equal Treatment Directive many times, the court has also applied exemptions from the Directive in situations feminists would consider inappropriate, for example siding with the UK to exclude women from the security forces in Northern Ireland in Johnston and from an elite combat unit in the 1999 Sirdar decision. But it

11 Treaty on European Union, Article 46, ex L (cited in Arnull 1999).12 The other cases in the campaign are Johnston, Sirdar, and Dory. See Trybus 2003 for an analysis of the cases.

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does not always take the conservative stance—it has taken an active role in institutionalizing sex equality principles in several areas, including pregnancy antidiscrimination law (Cichowski 2001).

Feminist scholars who support the ECJ argue that the court makes poor decisions because of political pressure (Hoskyns 1996; Prechal and Burrows 1991). Those who do not consider the court an ally of the women's movement have harsher interpretations of its inconsistency, arguing that the ECJ "has cloaked itself in something akin to a feminist cloak almost always only where some gain can be obtained in terms of reinforcing its own legitimacy within the system" (Shaw 2001: 142). Kreil fits this model, but how can women's equality judgments serve such a legitimating function for the court?

Women's equality discourse can legitimate court decisions because it is widely resonant in national European politics and was institutionalized in the EU legal sphere in past protest. In campaigns in the 1970s and 1980s, the European women's movement succeeded in extending the single mention of women's rights in the Treaty of Rome (on equal pay for equal work) into a broad patchwork of women's rights directives and precedents (Hoskyns 1996).13

This was more than a symbolic victory. This campaign by a highly mobilized activist network, the "women's European policy network," brought the women's equal treatment discourse to prominence in EU politics (Hoskyns 1996). Though feminist protests have produced many different discourses—in Germany, an equality-in-difference discourse is ascendant (Ferree 1987)—the women's equal treatment discourse, a liberal and market-oriented frame with global resonance, has political salience in Europe because it is formally institutionalized in the EU political opportunity structure through EU law. Indeed, sex equality law is regarded as the most developed social law in the primarily commercial realm of EU law (Ellis 1991).

The extensive legal guarantees that feminists won entered the core EU documents, making these discursive resources publicly available and widely resonant, but this does not mean that they "automatically" come to play. The ECJ still supports women's rights only in some cases. This inconsistency derives from the court’s institutional activism, which must appear to fit within the norms of proper judicial enforcement (Shaw 2001). In this regard, framing practices are necessary tactics, and discursive resources become valuable. If the ECJ can borrow women's equality discourse for its efforts, it is more likely to decide in favor of women's rights. The court's inconsistency also points to limitations in how the court perceives the effectiveness of these discursive resources: the ECJ has always chosen its jurisdictional battles with a careful assessment of the strength of possible Member State opposition, for example, rarely choosing to make a stand against the UK, even in the comparable military gender integration cases Sirdar and Johnston.

DATA AND METHODS

I collected information about the ECJ’s actions in Kreil from the two primary court documents, the Advocate General’s Report and Judgment of the Court, and from its press release. In the EU legal system, an Advocate General is empowered by the court to investigate the merits of the case and deliver its findings in a report to the court. The Advocate General’s Report is not binding, but ECJ judges commonly follow the Advocate General, repeating verbatim sections from the Reports. The Reports, like the Judgments are numbered not by

13 Hoskyns identifies the movement as a network of activists that she calls the "women's European policy network" consisting five main strands: representatives from national equality offices (Advisory Committee on Equal Opportunity), expert committees, the European Parliament Women’s Committee, traditional women's organizations, and feminists groups. The campaign took off in the 1970s and its chief successes were the creation the Equal Pay Directive and the Equal Treatment Directive. Directives are not the most powerful form of law as they are directed at Member States rather than individuals, leaving the Member State to decide the method to achieve the ends that the Court specifies.

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page numbers but according to points of argument, which range from a sentence to several paragraphs. I measured the framing of the case by weighing the number of points with women's rights arguments against the number of points with arguments over public security jurisdiction. I also use the documents to track the women's equal treatment discourse by the court, which I measure by phrases such as "equal treatment for men and women," "equal opportunity for men and women," "exclusion of women," and "sex discrimination" (see Berkovitch 1999).

I complement this textual analysis with historical-institutional data to show how the jurisdictional issues arise for the court. I found data on EU case law through keyword searches in the CELEX database and the secondary literatures on EU law and EU feminist protest. With this data, I analyze the legal texts in light of the pressures of European integration and the trends in ECJ judgments on public security and women's rights to show what is and is not distinctive about this particular case.

To assess the extent to which the women's equality frame successfully outweighed the public security frame offered by Germany, I surveyed newspaper reports of Kreil for mention of the jurisdictional struggle. A keyword search ("Kreil") of English-language European news sources in LexisNexis from 2000 to 2004 produced 40 articles, of which 38 articles were relevant to the Kreil case. I conservatively coded an article as a "public security" article if it included any arguments about the court's or Member State's right to decide military policy. If it discussed women's rights, without mentioning the public security debate, I coded the article as a "women's rights" article. I also investigated the German government’s response to the decision in the newspapers.

I trace the social activism surrounding the Kreil case with interview data, SMO public statements, and secondary sources. I defined the "women's movement" as a network of activists sharing a common goal of developing rights for women. Drawing on the work of Catherine Hoskyns (1996), I identify the European Women's Lobby as the primary organizational node for feminist lobbying and legal campaigns at the EU level. Starting with the European Women's Lobby, I sent email queries to European SMOs, tracking down Kreil’s supporters in a snowball sample. In the emails, I asked if the organization had participated in the case and if not, whom they thought might have supported Kreil. All of the SMOs that I emailed responded. The search for Kreil’s organizational support base was short: it began with the focal organizational node, the European Women's Lobby (email reply from a policy officer), continued on the policy officer’s recommendation to the Deutscher Frauenrat (email reply from the Assistant to the Secretary General); Deutscher Frauenrat identified the German Federal Armed Forces Association as the supporting SMO. I confirmed the German Federal Armed Forces Association’s involvement, and, in two additional emails, I interviewed their legal expert on women and the armed forces. I asked how and why the group supported Tanja Kreil. I assessed the group’s claims in conjunction with its public statements and those of its EU affiliate, EUROMIL, which I found on their websites. I focused on their stances on women's rights and their actions in the Kreil case.

FINDINGS

The data produced findings in three main areas: framing, substantive impact, and activism. With regard to the question of how the case was framed, the data shows that the Kreil case was framed as a women's rights case. For the question of substantive impact, the data shows that the court made a significant advance in jurisdiction to establish its authority over public security. Regarding the question of what role the women's movement played and the related question of whether a social movement organization supported Kreil, evidence shows that the case was not actively supported by feminist SMOs, but drew support from a group that campaigns for the rights of military personnel.

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Framing: a Women's Rights Decision

Though the Kreil case raised two legal questions, women's rights and public security, in the judgment, the court framed the case exclusively as a women's rights case. Kreil offered the frame when she presented the case as a violation of the Equal Treatment Directive; Germany countered with the frame of public security. The ECJ used the women's rights frame: arguments about women's rights heavily outweigh those about public security jurisdiction. In the Advocate General’s Report, two out of 39 points (5%) reference public security, while all 39 points address women's rights. In the judgment, 11 of 33 points (33%) are public security arguments, and 28 of 33 (85%) points are women's rights arguments. Women's rights arguments also are more prominently placed in the text of the documents, in the titles and summaries. Germany’s arguments against women's rights (protection and combat effectiveness) receive more mention than its alternative frame (public security jurisdiction).

The newspaper reports of the trial echo the court's framing of the case as a women's rights case. The court's press release for the case mentioned jurisdictional struggle in two of 12 paragraphs, buried in the middle of the document. Twenty-nine of the 38 newspaper articles (79%) were women's rights articles, making no mention of the battle for jurisdiction over military affairs.

The ECJ uses women's equal treatment discourse throughout the text of Kreil. Most commonly, the court refers to equal treatment for men and women (five mentions) and the exclusion of women (five mentions). Much of the decision is taken verbatim from the Advocate General, who also uses movement discourse throughout the text, most commonly, equal treatment for men and women (five mentions), gender/sex discrimination (six mentions), and exclusion of women (five mentions).

Substantive Impact: Authority over Public Security

Despite the women's rights frame, the most controversial question was one of jurisdiction. Kreil’s profound impact was to extend the court’s jurisdiction to national militaries. The judgment affirms the court’s authority over issues of public security.

Although it is for the Member States, which have to adopt appropriate measures to ensure their internal and external security, to make decisions on the organization of their armed forces, it does not follow that such decisions must fall entirely outside the scope of Community law. It is not possible, without impairing the binding nature of Community law and its uniform application, to recognize that there is inherent in the Treaty a general exception covering all measures taken by a Member State for reasons of public security, above and beyond specific cases contemplated in certain provisions. (ECJ 2000: summary; emphasis added).

Germany, with Italy and the UK, countered that the case fell outside of ECJ jurisdiction:

According to [Germany], Community law does not in principle govern matters of defence, which form part of the field of common foreign and security policy and which remain within the Member States' sphere of sovereignty. (ECJ 2000: pt. 12; emphasis added).

Germany was unsuccessful in restricting the court’s jurisdiction over the military, and the ECJ successfully claimed significant new power in its judgment.

Activism: Practical Support for Kreil

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Though feminist equal treatment discourse surfaces throughout the Kreil legal documents, neither the German movement nor the European women's policy network actively supported Kreil. Both the European Women's Lobby and Deutscher Frauenrat stated that their organizations did not support Kreil, but they also did not contest the plaintiff’s or the ECJ’s framing of the case as an equal rights matter. At the national level, German feminists did not mobilize around including women in the military. In the movement, many saw Germany’s and women's greater involvement in military matters as unwelcome (Tönsmann 2001). Even those who gave priority to antidiscrimination issues chose not to raise the issue in the context of military service.

The SMO that did support Kreil, the German Federal Armed Forces Association, was primarily interested in extending EU social law to the military. The German Federal Armed

14 "The German Federal Armed Forces Association (that’s us!) supported Ms. Kreil in this suit. We also support young women, who want to go to the army and help them to integrate as soon as possible…. The Association's aim is to guarantee servicemen equal rights to participation in political and social life as responsible citizens in uniform" (Schattschneider 2002).

CASES CITED

European Court of JusticeCase 72/83 Campus Oil Limited v. Minister for Industry and Energy [1984] ECR 2727.Case C-222/84 Johnston v. the Royal Ulster Constabulary [1986] ECR 1651.Case 367/89 Criminal proceedings against Aimé Richardt and Les Accessoires Scientifiques [1991]

ECR I-4621.Case C-273/97 Sirdar v. The Army Board and Secretary of State for Defence [1999] ECR I-7403.Case C-285/98, Kreil v. Federal Republic of Germany [2000] ECR. I-69.Case C-186/01 Dory v Federal Republic of Germany [2003] ECR I-2479.

German Constitutional Court (BVerfGE)37 BVerfGE 271 [1974] CMLR 540 Solange I.75 BVerfGE 223 [1987] Kloppenburg .89 BVerfGE 155 [1993] Maastricht. United States Supreme CourtBrown v. Board of Education, 347 U.S. 483 (1954).Marbury v. Madison, 5 U.S. 137 (1803). McCulloch v. Maryland, 17 U.S. 316 (1819).Rostker v. Goldberg, 448 U.S. 1306 (1980).

TREATIES CITED

Treaty Establishing the European Economic Community, 25 Mar. 1957, 298 U.N.T.S. 3.Treaty on European Union, 7 February 1992, 1992 O.J. (C 191) 1, 31 I.L.M. 253 (Maastricht Treaty).

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The women's equality frame was a resource articulated in EU law, thanks to the European women's policy network’s efforts. It was effective because the frame drew on the institutionalized women's rights claims and resonated with the discursive opportunity structure to appear as commonsensical fairness. Restricting equal opportunities for women has become so difficult to justify in Europe that even the German representative endorsed the principle, an inconsistency not lost on the Advocate General: "during the hearing before the Court, the agent for the German Government specifically stated that there was absolutely no doubt as to the suitability of either Ms. Kreil or women generally to serve in the armed units of the [German military]" (La Pergola 1999: pt. 16).

As long as the women's rights frame holds, the opposition is forced into a much less legitimate "anti-equal treatment" discourse. Imagine, in contrast, that a public security frame dominated. Then Germany would have been in the much stronger position of arguing that it had greater expertise in making an effective military than the court and the sovereign right to make independent decisions about national security. The court’s choice of frame was effective, and the frame was available as a discursive resource because the women's movement had won it a place in EU law.

Past protests were significant to the outcome in Kreil. The appeal to equal treatment for men and women is effective because in past campaigns beginning in the mid-nineteenth century, the women's movement had established the principle’s broad ideological legitimacy, and European mobilization since the 1970s had secured a legal framework to support it in the EU. The court operated in a political landscape characterized by a wide normative acceptance of the principle of women's equality. This is not to say that women's rights are always enforced in the EU—they are not—but that elites must project support for the basic tenets of women's equality, lest they be labeled "backward" and made political outcasts. Thus, past movement campaigns laid the groundwork for the court's success in establishing its jurisdiction over national militaries, but not through direct alliances. Past protest established this discourse as a resource that continues to be useful to the movement even when it is taken up by elites for their own ends. Rather than co-opting the language of the movement to undermine its goals, elites may seize their own political opportunities by borrowing the discourse.

A Relationship of Borrowing

The outcome of this case, and the relationship between movements and elites that produced it, is not explained by alliances or cooptation. Because the movement's goals were not undermined by Kreil, the case does not fit easily into a cooptation model, especially since even those feminists who objected to seeing women (or men) carry arms did not argue against Kreil’s case. Neither were any women's movement groups engaged in supporting her case directly, so this was not an alliance. Thus, the case exposes the limits of prior relational approaches to movement outcomes—lacking evidence of either alliance or cooptation, researchers would overlook the role of feminist protest in the Kreil outcome.

Without this relational model of borrowing, the women's equality discourse that buttressed the court’s jurisdictional expansion would likely have been taken as a sign of a reformist court bent on strengthening women's rights or as an indicator of a world culture

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Zemans, Frances Kahn. 1983. "Legal Mobilization: The Neglected Role of Law in the Political System." American Political Science Review 77: 690-703.

Zippel, Kathrin. 2004. "Transnational Advocacy Networks and Policy Cycles in the European Union: The Case of Sexual Harassment." Social Politics 11: 57-85.

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Mobilization

idiom endorsing women's equality. But both of these accounts would fail in light of the court’s contemporaneous anti-feminist decision in Sirdar, in which the court supported the UK’s assessment that women might undermine the quality of an elite military force.

Both the world culture and reformist perspectives take the inclusion of women's rights as merely a feature of modern society or general liberal progress, erasing the struggles that characterized women's emancipation in the past and that continue to be won—and lost—in court decisions. A plausible account of movement involvement might focus on the German Federal Armed Forces Association and describe the ECJ as the part of the political opportunity structure, but that would miss the active role that the court played. As case law shows, Kreil was part of a struggle to establish jurisdiction over public security. The EU may have been forged as a commercial alliance, but military security lies at the heart of Community politics, and public security is at the forefront of European integration—military collaboration was a controversial addition to Community competence in the Treaty on European Union. The court's record of case law establishing the supremacy of Community law and other competencies speaks to its efforts to strengthen its mandate. But neither the German Federal Armed Forces Association, nor the court created the discursive resources that the court drew on to make this claim.

In sum, the ECJ borrowed the women's equality discourse from the women's movement. The discourse that the court used is not primordial: it took work to develop and feminist activists did that work. The court did not act in alliance with a feminist SMO, nor did it co-opt the movement. The Kreil case represented a distanced but not damaging interaction—the borrowing of movement discursive resources by an elite institution.

CONCLUSION

Sometimes it is unclear what, if anything, protest accomplishes (Giugni 1998). We often need to look beyond the immediate protest events to understand a movement’s significance (Amenta et al. 2005; Andrews 2004). I adopted this long-range perspective to assess the relevance of past movement outcomes—the creation of the women's equality discourse and the ensuing institutionalization of this discourse in the Equal Treatment Directive of the EU—for a contemporary elite-sponsored outcome.

So can elite-sponsored outcomes be social movement outcomes? I have shown that elites can take up discursive resources developed by movements. In the process, I have refined the discussion of movement-elite relations to distinguish between direct and indirect relations and destructive and non-destructive outcomes. I have presented a type of relation, the borrowing of movement resources, which, in contrast to alliances and cooptation, connotes an indirect and nondestructive relationship of elites and movements.

While the elite-sponsored outcome of the Kreil decision may not have been a movement success, it is an example of movement outcome as the ECJ relied on movement resources developed through past movement activities to mollify potentially recalcitrant Member States in its jurisdictional struggles. Social movements negotiate the structural confines of the political opportunity structure, but so do elites. Moreover, elites are not always more resourceful than social movements. If, as in the Kreil case, elites can use movement discursive resources, then it becomes evident that movement outcomes have far-ranging consequences and movement discourses have complex trajectories.

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