THEORETICAL DEBATES ON REGIME TYPES, GENDER POLITICS, AND INSTITUTIONAL CHANGE

The feminist literature on political systems and gender rights asks which regimes promote gender equality, and when and why they do so (Adams Reference Adams2007; Donno and Kreft Reference Donno and Kreft2019; Lorch and Bunk Reference Lorch and Bunk2016, Reference Lorch and Bunk2017; Mama Reference Mama, Cheeseman, Anderson and Scheibler2013; Sika and Khodary Reference Sika and Khodary2012; Svedberg Reference Svedberg2019; Tripp Reference Tripp, Waylen, Celis, Kantola and Laurel Weldon2013, Reference Tripp2019; Valdini Reference Valdini2019). Tripp (Reference Tripp, Waylen, Celis, Kantola and Laurel Weldon2013) argues that democratic regimes seem more likely to achieve higher levels of gender equality than other regime types. Democracies provide the political context in which women's movements can empower themselves to lobby for change. Stronger judiciaries can adjudicate in favor of women's equality. Femocrats within state institutions precipitate improvements in women's status, and for some democratic regimes, there is also the need to abide by changing norms regarding gender equality (Tripp Reference Tripp, Waylen, Celis, Kantola and Laurel Weldon2013). This was the case in Turkey during the post-1980 period until around the first decade of the 2000s. In line with theories arguing that democratization extends gender rights, democratization in Turkey in the 1990s allowed for and, in turn, grew stronger through the development of a women's movement that successfully promoted women's rights (Arat Reference Arat and Kasaba2008; Tekeli Reference Tekeli2010). Democratic rule created a political space in which women could lobby for their rights. Women pressed for changes in the legal codes and the eradication of gender-based violence. Turkey's candidacy for the European Union in 1999 also provided an opportunity space that further allowed women to successfully promote their cause.

Authoritarian regimes, on the other hand, generally remain behind democratic regimes in terms of promoting women's status (Mama Reference Mama, Cheeseman, Anderson and Scheibler2013; Tripp Reference Tripp, Waylen, Celis, Kantola and Laurel Weldon2013). However, some of them do improve women's rights. Donno and Kreft (Reference Donno and Kreft2019) claim that 25% of autocracies match or perform better on women's rights than developing democracies and argue that the institutional features of dictatorships shape their capacity for the provision of women's rights. Researchers have different explanations as to why some authoritarian regimes provide rights when others do not. Tripp (Reference Tripp2019, 24) argues that in Morocco, Algeria, and Tunisia, the secular authoritarian political elites strategically use and extend women's rights “to counter extremist Islamist trends and present a modernizing image of their country abroad.” According to Tripp, even Islamist parties feel pressure to adopt women's rights reforms, although they change their positions once in power.

Lorch and Bunk (Reference Lorch and Bunk2016), who study Algeria and Mozambique, claim that promoting women's rights can contribute to the resilience of authoritarian regimes. The regime can use women's rights to legitimize its rule and maintain power. It can benefit from women's organizations as a means of co-opting women to draw on their political support. Finally, authoritarian rulers can instrumentalize women's rights to draw a wedge between women's groups, particularly playing on secular groups’ fears of Islamic empowerment.

Others underline the importance of international legitimacy and reputation (Adams Reference Adams2007; Svedberg Reference Svedberg2019). International organizations that surveil democratic rights can be more lenient on dictatorships that improve women's rights (Svedberg Reference Svedberg2019). In a context in which the authoritarian state is dependent on international aid, adopting feminist politics without necessarily implementing them can provide much-needed international legitimacy (Adams Reference Adams2007). Bush and Zetterberg (Reference Bush and Zetterberg2021) test this hypothesis and conclude that gender quotas really generate a reputational boost. While these scholars study the relationship between gender and specific regime types, Valdini (Reference Valdini2019) uses rational choice theory to argue that male elites decide to include women in politics to maintain their own power regardless of regime type, including in democracies and hybrid regimes.

In the Turkish case, the AKP instrumentalized women's issues to entrench its rule both in its democratic years and in the period of democratic backsliding. A substantial literature on the AKP's gender policies examines its conservative turn and restrictive implications for women's rights (Acar and Altunok Reference Acar and Altunok2013; Akkan Reference Akkan2018; Aksoy Reference Aksoy2018; Ayata and Doğangün Reference Ayata and Doğangün2017; Candaş and Silier Reference Candaş and Silier2013; Cindoğlu and Ünal Reference Cindoğlu and Ünal2017; Coşar and Yeğenoğlu Reference Coşar and Yeğenoğlu2011; Dedeoğlu and Elveren Reference Dedeoğlu and Elveren2012; Doyle Reference Doyle2018; Koyuncu and Özman Reference Koyuncu and Özman2019). Yet the questions these authors pose do not specifically address how the instrumentalization of women's rights served the different needs of the governing elites at each stage of democratic backsliding and contributed to a change in the gender regime. Feminist scholars urge us to examine how institutional change occurs in a gender framework and how governing elites manipulate women's interests in this process (Celis et al. Reference Celis, Kantola, Waylen, Laurel Weldon, Waylen, Celis, Kantola and Laurel Weldon2013, 16).

I draw on Thelen's (Reference Thelen, Morgan, Campbell, Crouch, Pedersen and Whitley2011) work on institutional change to trace this process in the Turkish case. Thelen's research on historical institutional change explores the conditions under which institutional transformation takes place. She focuses on incremental change taking place within the constraints of existing institutions, where actors who pursue their interests under these conditions can ultimately bring about radical shifts. In this article, I use Thelen's work not to study the regime change that took place in Turkey, but the change in the gender regime that replaced the gender equality framework with a conservative gender complementarity one. I draw on Thelen's work because it sheds light on the question of how the gender regime changes in a context of regime change over time. Her work helps me explore how changing institutional constraints shape the strategies political actors within existing institutions use. It sheds light on how these actors instrumentalize women's rights to promote their own political interests. This framework allows me to engage the literature on regime types and gender rights with questions of institutional transformation in an interdisciplinary way.

Thelen (Reference Thelen, Morgan, Campbell, Crouch, Pedersen and Whitley2011) argues that three strategies can be used to bring about transformation in existing institutions: (1) purposeful neglect, (2) redirection of old laws to serve new ends, and (3) displacement through the replacement of old institutions.

I identify institutions as rules, norms, and practices that shape gender rights, following the convention on the subject (Celis et al. Reference Celis, Kantola, Waylen, Laurel Weldon, Waylen, Celis, Kantola and Laurel Weldon2013). In line with Thelen's framework, I trace how the governing elites first passed liberal reform laws on gender rights when they came to power and then duly ignored them. This helped the power holders legitimize their rule and bolster their reputation using the facade of improving women's rights. During the years of democratic backsliding, the pro-AKP judiciary reinterpreted existing laws to extend religious rights, to the detriment of many women. This helped the AKP regime use the legal framework to promote its conservative gender ideology from the top down. As the governing elites consolidated their power and needed neither secular legitimacy nor legal grounds for extending gender norms, they established new women's institutions that could mobilize women for the AKP and propagate conservative gender norms. The AKP regime sought to marginalize, if not replace, older organizations that upheld the egalitarian legal framework. Thus, I show how incremental changes that helped political authority reproduce itself through law and reform paved the way for extending patriarchal norms in an increasingly authoritarian system.

THE CONTEXT: THE AKP'S CLAIM TO POWER

The AKP came to power in 2002, not as a religious or an Islamist party, but as a “conservative and democrat” one in a secular state (Yavuz Reference Yavuz2009, 79–93; see also Özbudun Reference Özbudun2006). Its two predecessors had been closed down by the Constitutional Court of Turkey because their activities abrogated the constitutional article protecting secularism. The AKP grew out of the moderate wing of a defunct Islamically rooted party and had roots in political Islam.

At the time, the staunchly secular state elites were deeply suspicions of Islamically rooted politicians. The major organs of the state, including the parliament, the president, the judiciary, and the military, prided themselves on their narrowly defined secularism. The constitution stated that the Republic of Turkey was a secular state and that this feature could not be altered, even though it did not define what secularism entailed. Nevertheless, the secularist state elites expected religion to be confined to the private realm and opposed the public visibility of Islam, including, for example, women's headscarves.

This was a period when the economic liberalization policies of the 1980s, coupled with weak governments, had left the country immune to the economic crises of a globalizing world (Öniş and Keyman Reference Öniş and Keyman2003). The military intervention of 1980 deinstitutionalized the party system by banning all political parties and encouraging the founding of new parties after the transfer of power to civilians. Even though a process of democratization began after civilians took power in 1983, the coalition governments that ruled the country in the 1990s were weak, tainted with corruption, and ineffective. The electoral system, though procedurally democratic, had a majoritarian bias with a 10% national threshold that aimed to keep small parties, most significantly the Kurdish population, out of political competition.

Despite these problems, this was also a period shortly after the European Union (EU) formally recognized Turkey's status as a candidate for membership in 1999. The EU expected the state to improve its civil liberties record and meet its human rights criteria for membership (Kubicek Reference Kubicek2011). The prospect of an alliance with the EU raised hopes for more democratization and change (Yılmaz Reference Yılmaz and Yılmaz2005). Turkey had never had a strong liberal democracy, but it had an institutionalized procedural democracy, which was liberal enough to allow the AKP—a political party that had roots in political Islam but pledged to respect the secular state and extend civil liberties—to contest elections. The AKP promised to pursue the EU accession goal with more conviction than its secular rivals. The liberal EU legislation could also be a safeguard to protect the AKP from closure by the secularists. Thus the AKP came to power, although it would not fulfill its promise to democratize the country; instead, it initiated a process of democratic backsliding and the emergence of competitive authoritarian rule (Esen and Gümüşcü Reference Esen and Gümüşcü2016).

THE WOMEN'S MOVEMENT

The AKP sought power not merely under secularist surveillance, but also in a country with a legacy of state feminism and a vibrant women's movement (Arat Reference Arat, Bozdoğan and Kasaba1997; Arat and Pamuk Reference Arat and Pamuk2019, 228–61; Tekeli Reference Tekeli and Dahelrup1986, Reference Tekeli2010). Women who called themselves feminists, including leftists, Kemalists, Kurds, and a few Islamists, together with others who did not claim to be feminists, fought for their rights as women in the context of democratization after the 1980 military intervention. The transition of power from a military to a civilian government took place in 1983 while women were organizing in small groups and sharing their experiences of discrimination. In 1986, when civil society organizations were still under strict state surveillance, women initiated the first public campaign to pressure the government to implement the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), which had been signed in 1985. The tradition of upholding gender equality was a legacy of the modernizing, if authoritarian, founding fathers. Consequently, women's public demands for more rights were not seen as threatening the state or the government, even when they were not immediately met (Arat Reference Arat1998, 118–19). Some prioritized the struggle against domestic violence or the amendment of the legal framework, others made demands for their religious rights as women to wear headscarves in universities, while still others sought recognition of their identities not merely as women, but as Kurdish women. Women protested in the streets, devised creative campaigns, published journals, and institutionalized their struggle for their rights through vibrant civil society organizations (Arat and Pamuk Reference Arat and Pamuk2019, 228–61; Diner and Toktaş Reference Diner and Toktaş2010).

By the 1990s, in a context of global feminism on the rise, political parties and the state began responding to women's calls. The Directorate of Women's Status and Problems and later a ministry of state responsible for women's issues were established. Women's studies centers in universities began to disseminate women-centered values in the country. Women began to successfully pressure the state to amend patriarchal laws. In 1998, the parliament accepted a law to protect women against domestic violence, which feminists had put on the political agenda.

Turkey's candidacy for membership in the EU boosted women's efforts to promote their cause (Müftüler-Baç Reference Müftüler-Baç2005). With strategic pressure by femocrats in various government institutions, the coalition government in power amended the Civil Code in 2001, a year before the AKP came to power (Marshall Reference Marshall2009). The introduction of the Civil Code in 1926, which replaced Islamic Sharia, was arguably the most crucial reform that the founding fathers of the Turkish Republic initiated. It abolished polygamy, recognized equal rights in divorce, and granted equal inheritance rights to women. Yet, it needed improvement, and feminists had been fighting for a more progressive amendment since the mid-1980s. The amended law recognized joint ownership of property in marriage and eliminated various patriarchal stipulations regarding the division of labor within the family. Property acquired during marriage would be shared in cases of divorce, regardless of formal ownership. In a country where the labor force participation of women was low (World Bank 2020) and most women were housewives, the new code thus aimed to compensate the unremunerated labor of women at home doing domestic work. Following the success of the Civil Code amendment, women continued to pursue other rights that needed political attention at the time the AKP came to power, including the amendment of the Penal Code.

THE AKP'S LIBERAL REFORMS ON WOMEN'S ISSUES AND PURPOSEFUL NEGLECT

The AKP government came to power in a context in which the women's movement prided itself on its achievements and collaborated with the state. Following its promises for further democratization, the government undertook a series of liberal reforms, including those on women's rights, during its first term in power from 2002 to 2007. The preceding coalition government had initiated democratizing reforms in pursuit of accession to the EU, and the AKP followed suit to further the EU goal (Müftüler-Baç Reference Müftüler-Baç2005; Tocci Reference Tocci2005). The AKP was a party rooted in Turkey's religious right, but its reforms concerning women were liberal and in line with the established gender equality framework that the women's movement pursued.

In 2004, the government amended the Penal Code. The women's movement at the time had been actively lobbying for an amendment that would extend women's rights on issues concerning gender-based violence. The new code defined crimes related to sexual violence as “crimes against individuals,” whereas the old code had categorized them as “crimes against public morality.” Punishments for sexual crimes and domestic violence increased. Marital rape and harassment in the workplace were both recognized as crimes punishable by law, which had not been the case before. The article of the old code that deferred punishment when a rapist married his victim was dropped. Similarly, articles that distinguished between married and single women and between virgins and sexually active women were abolished (Arat Reference Arat and Kasaba2008, 406–8; Sarıhan Reference Sarıhan2005). The new AKP government also reinforced the gender equality article of the constitution (Article 10) by adding a clause stipulating that the state would be responsible for establishing gender equality.

A year later, in line with the amendment of the Penal Code, the government initiated the amendment of the Law on Municipalities. With this amendment, the state made it mandatory for municipalities with more than 50,000 inhabitants to establish women's shelters to protect the victims of domestic violence (Coşar and Yeğenoğlu Reference Coşar and Yeğenoğlu2011). In 2006, the Prime Ministry collaborated with feminist groups and issued a road map to prevent gender-based violence through a more radical and holistic plan. This initiative listed in detail the responsibilities of all institutions that would have to take action to eradicate violence toward women. Recep Tayyip Erdoğan, the prime minister at the time, was keen to send the message that he was concerned with women's problems, such as gender-based violence, that primarily secular feminists advocated at the time.

These liberal reforms were functional in promoting the AKP's interests (Dağı Reference Dağı and Yavuz2006). They helped promote the popularity, legitimacy, and credibility of the Islamically rooted government, which had promised to democratize and to pursue EU accession, which a large majority of the population supported. During this phase, the AKP was still circumscribed by the secular elites, who controlled the military, the bureaucracy, and the judiciary and were wary of the AKP's religious credentials. To secure its hold on power, the AKP government accommodated the secular elites and assuaged their persistent fears. The reforms were instrumental in dispelling suspicions that the party in power threatened the secular nature of the republic. Improving the legal framework to extend women's rights was thus a politically useful move to communicate to the electorate that the new government would operate within the secular republican framework and could be trusted to remain in power.

There were advantages at the international level as well. Gender-based reforms signaled to the international community that this religiously rooted party was progressive on human rights and endorsed universal values. Moreover, even though the credibility of the EU conditionality was high in the early 2000s, Turkey nevertheless had to meet the Copenhagen criteria and improve its human rights record (Kubicek Reference Kubicek2011). Extending women's rights provided an opportunity that was not politically costly compared, for example, with curbing the intervention of the military in civilian affairs or recognizing Kurdish language rights, which the EU also expected from Turkey. At the time, the military still had the power to threaten the existence of the AKP, and extending Kurdish rights would have generated opposition from large sections of the population, including the AKP's constituency. Women, unlike Kurds, demanded neither autonomy nor language rights that would challenge the power of the ruling elites.Footnote ⁴ Recognition by the international community, and especially the EU, would improve the AKP's domestic legitimacy and power as well. Finally, gender rights could be easily ignored, as indeed they were (Coşar and Yeğenoğlu Reference Coşar and Yeğenoğlu2011). A female constituency that could punish the incumbent elites in elections was not yet there. The issue of gender quotas never came up. There was no effective fight against gender-based violence (Kandiyoti Reference Kandiyoti2016). In 2019, AKP parliamentarians contested and tried to renege on articles of the amended Penal Code on punishments for sexual crimes (Bianet 2019).

However, at the time, the AKP's attempts to contain secular groups skeptical of a religiously rooted party in power were not successful. By the end of its first term, the secular opposition, both in parliament and in the judiciary, prevented the AKP government from exercising its electoral power. Despite its strong majority in parliament, the AKP could not have its candidate for the presidency elected. At the beginning of the AKP's second term, the secular opposition did not let the government lift the ban against Muslim headscarves (Aksoy Reference Aksoy2015).

Under these circumstances, the AKP changed its strategy of containing the secularists and instead intended to circumscribe the power it had (Arat and Pamuk Reference Arat and Pamuk2019, 101–15). To prevent the secularist high courts from obstructing AKP initiatives, the government decided to democratize the meritocratic structure of the Constitutional Court and the High Council of Judges and Prosecutors through the amendment of laws shaping membership recruitment. This change took place as part of a larger liberalization or democratization package that had to be taken to a referendum in the context of adjustment to the EU acquis.

In the process, the government further strengthened the protection of gender equality in constitutional Article 10 and made it a part of the 2010 democratization package. The proposed article stipulated that the state's measures to ensure gender equality could not be interpreted as contrary to Article 10 of the constitution. Hence, there would be no legal grounds to contest affirmative action. It was a message to the electorate that the AKP was concerned with secular women's political issues in the 2010 referendum. Still, many feminists voted no because they did not trust Erdoğan on gender rights. Others argued that the amendment was unnecessary, because if the state was responsible for establishing gender equality, it could take the required measures to achieve this goal without abrogating the equality principle (Koç Reference Koç2010).

Yet, strengthening Article 10 had another function that would bolster the government against the secularist opposition. It helped divert attention from the major aim of the referendum, which was to help the government reshape the Constitutional Court and the High Council of Judges and Prosecutors by changing the electoral rules of membership (Kalaycıoğlu Reference Kalaycıoğlu2012). Proposed amendments concerning the judiciary would increase the number of judges sitting on the high courts. The new laws would also allow pro-AKP groups, such as lower-level judges and popularly elected majorities in the parliament, to choose the members of the high courts. Until then, secular professionals of the Court of Cassation and the Council of State had the privilege of shaping the membership of the higher courts based on merit. The referendum package would thus allow the AKP to undermine the secularist hold on the top courts and give the party a chance to gain the judiciary as a political ally. The new Article 10, along with other minor liberal constitutional changes, such as recognizing some privacy rights and abolishing the political immunity of the 1980 coup leaders from accounting for their deeds, would serve to divert focus from the politically controversial amendment, which was aimed at transforming the composition of the high courts (Kalaycıoğlu Reference Kalaycıoğlu2012). It would make the package look liberal and democratic. Indeed, the EU Enlargement Commission warmly approved and supported the referendum for its democratizing goals (Morelli Reference Morelli2010).

The amendments proposed by the government as a single package were accepted with 58% of the popular vote. After the referendum, while the amended Article 10 was ignored, the new rules transforming the membership of the judiciary were implemented. Thus, the dominance of the secularist judges in the high courts ended, and the AKP was able to consolidate its power without judicial surveillance.

The 2010 referendum marked a turning point, after which the AKP governments began to control the courts (Bakıner Reference Bakıner, Başer and Öztürk2017, 34–35). The strengthening of the gender equality clause, among others, helped obfuscate crucial changes that would allow the government to appoint conservative judges who would loyally support the party's agenda. Soon after the referendum, in 2010, Erdoğan publicly stated that he did not believe in equality between men and women (Pelek Reference Pelek2010). The 2010 referendum that had begun as a democratizing move also initiated the process of backsliding.

By 2011, the AKP government had begun curtailing civil liberties and controlling the media (Esen and Gümüşcü Reference Esen and Gümüşcü2016). Nevertheless, the government continued to be careful to promote a liberal image of itself, for both its foreign and domestic constituencies. Turkey thus contributed to the drafting of the 2011 Council of Europe Convention on Preventing and Combating Violence Against Women and Domestic Violence, named the Istanbul Convention for short because it was opened for signature in Istanbul. Turkey was the first country to ratify the convention in its parliament. In line with the Istanbul Convention, in 2012, Turkey's parliament passed a new law that improved and bolstered the 1998 law on the prevention of domestic violence. The pursuit of women's protection against violence was a pragmatic means to appeal to both the secular groups and the AKP's pious constituency. Unlike some feminist demands for quotas or freedom for sexual expression, eradicating violence against women was not a divisive goal. On the contrary, it would mask, or at least balance, the government's increasingly conservative policies supporting women's subordinate and dependent role in the family, such as extending maternal leave for women and making their employment less desirable for employers or encouraging women to work part time. Erdoğan also encouraged all women to give birth to three children (Coşar and Yeğenoğlu Reference Coşar and Yeğenoğlu2011). At the time, a showdown with Europe did not seem expedient, and sharing universal values concerning women's protection from violence would be helpful both for diplomatic relations and for sustaining local support for the regime.

While these reformist liberal laws helped the increasingly illiberal governments maintain a liberal image to consolidate their power, none of the reform measures, including the Penal Code and the Istanbul Convention, was implemented. By 2019, the amended articles of both the Penal Code and the Istanbul Convention began to be contested by AKP members. In 2021, Erdoğan withdrew Turkey from the Istanbul Convention. The AKP governments, according to Thelen's (Reference Thelen, Morgan, Campbell, Crouch, Pedersen and Whitley2011, 56) terms, drifted through purposeful neglect in a context of change until they had the power to criticize those amendments. Neither the prevention of violence against women nor the amendment of the constitution's gender equality clause was a substantive concern of the AKP governments. Gender-based violence soared, while the AKP became more illiberal (Ulukaya Reference Ulukaya2015). However, at this stage of institutional change, the liberal reforms and the liberal discourse served to consolidate the power of the AKP governments both domestically and internationally.

LIBERAL INTERPRETATIONS FOR ILLIBERAL ENDS

The process of backsliding began after the AKP's first term in government, and particularly after 2010, although the exact date can be contested (Bakıner Reference Bakıner, Başer and Öztürk2017). In 2009, the largest media group in the country, which had exposed a large Islamist embezzlement case, was diminished after it was fined half a billion dollars for alleged tax evasion. Journalists began to be fired based on the instructions of the president, and many others were jailed for their reporting. To weaken the military, the government collaborated with the Islamic Gülen movement, which had infiltrated the judiciary. The Gülen prosecutors and judges arranged two rigged mass trials in 2007 and 2010 at which hundreds of military officers, including the commander in chief of the armed forces, were convicted of conspiring to overthrow the government. After the trials that ended in 2013 and 2012, respectively, the military was no longer a threat to democracy, but instead subservient to increasingly authoritarian civilian rule under which the judiciary was compromised and the media obstructed.

The Gezi protests against the government's restriction of rights and freedoms took place in 2013. By the end of the year, the alliance between the Gülenists and the AKP against the secularist military and judiciary turned into a feud over state power. The separation of powers between the government and the judiciary eroded further during this crisis (Özbudun Reference Özbudun2015). In 2014, then Prime Minister Erdoğan was elected president of the country with 52% of the general vote. At the time, Turkey still had a parliamentary system. Yet, the president had already begun using power in outright defiance of the constitutional limits within which he had to operate. In the June 2015 general elections, the AKP lost the electoral majority necessary to form a single-party government. In November 2015, Erdoğan engineered a repeat general election and regained the electoral support needed for the AKP to form a single-party government (Kalaycıoğlu Reference Kalaycıoğlu2018). In 2015, by the time the AKP won the national elections for a fourth term, there was, in Levitsky and Way's (Reference Levitsky and Way2002, 53) words, “an uneven playing field between the government and the opposition,” such that Turkey could be described as a competitive authoritarian system (see also Esen and Gümüşcü Reference Esen and Gümüşcü2016; Özbudun Reference Özbudun2015).

During this stage, the AKP government and its allies in the courts appealed to liberal norms to serve their conservative agenda and bring about top-down change involving women's rights through the law. In Thelen's (Reference Thelen, Morgan, Campbell, Crouch, Pedersen and Whitley2011, 56) words, they “reinterpreted old rules to serve new ends.” In May 2015, the Constitutional Court, which by then was composed of mostly pro-AKP judges under Erdoğan's influence, signed a critical verdict that reinterpreted the “old rules” of the secular constitution to promote religious marriage.

In Turkey, the secular state neither registers nor recognizes religious marriages. Until the 2015 Constitutional Court ruling that annulled the relevant article of the Penal Code, religious marriages could be contracted freely only after a civil marriage. If a religious marriage was contracted prior to a civil marriage, the married couple and the person performing the marriage ceremony could be punished with two to six months’ imprisonment. This Penal Code article was legislated in line with Article 174 of the constitution on the protection of the revolutionary laws of the founding fathers. The Civil Code was such a law. Article 174 stipulates that the marriage act, prescribed by the Civil Code that replaced Sharia, has to take place before a civil servant, who registers it as a civil marriage.Footnote ⁵ This particular article was contested before, in 1999, but the Constitutional Court at the time ruled, unanimously, that it was constitutional (Constitutional Court 2015, 9–10).

By the 2000s in Turkey, at most 3% of the population contracted only religious marriages without a civil marriage, even though more than 80% contracted both civil and religious marriages (Altınay and Arat Reference Altınay and Arat2007, 64). People could practice their religious rites of marriage as long as they also contracted civil marriages. Even though the practice of contracting civil marriages first and religious ones later was widely endorsed, women's civil society associations nevertheless organized campaigns, as late as the 1990s, to make sure that all marriages were first contracted according to the Civil Code.Footnote ⁶ The Civil Code provided numerous protections to women in marriage, divorce, and inheritance, as discussed earlier, especially after it was amended in 2001, with the successful lobbying of the women's movement and the priorities of the secular coalition government of the time to harmonize Turkey's laws with those of the EU.

Within this secular legal framework, and in the context of increasing restrictions of rights and the rapid erosion of separation of powers between the executive and the judiciary, a criminal court in Erzurum appealed a case to the Constitutional Court involving a couple who had married in a religious ceremony and a local religious leader who carried it out, without a civil marriage. The Constitutional Court issued a majority ruling that the Penal Code article criminalizing religious marriage without civil registration violated the constitution and annulled the relevant provisions of the Penal Code. Twelve of the 16 judges who adjudicated the case voted for the annulment of the disputed article. The requirement of civil marriage prior to religious marriage was thus dismissed in Turkey. The Federation of Turkish Women's Associations immediately announced that “the judgment would increase the number of men marrying multiple women, underage marriages, paid marriages, and infringements of women's rights in relation to marriages” (Uras Reference Uras2015). Yet the verdict could not be reversed.

In this historic decision, the court reinterpreted three articles of the constitution by appealing to a decontextualized liberal ideology: Article 20 on the individual's right to demand respect for his or her private and family life and the privacy of private or family life, Article 24 on the freedom of religious belief and conscience, and Article 13 on restrictions that could be made on basic rights and freedoms in line with democracy and the spirit of the constitution (Constitutional Court 2015, 4). The court concluded that Article 10 on equal treatment of citizens was not relevant to the case under contestation. According to the majority opinion, the contested article of the Penal Code was contrary to Article 20 because it restricted the individual's right to privacy and respect for their private life without grounds defined under Article 13. Article 13 specifies that restrictions on basic rights and freedoms cannot be contrary to the requirements of a democratic order, even though the latter requirements are not defined. The court decided that the requirement of a civil marriage prior to religious marriage was contrary to democratic needs. The aim of Article 20 was to keep the state from intervening in private lives (Constitutional Court 2015, 4). According to the court, the state was being unduly intrusive in shaping its citizens’ right to marry as they chose. The court's case assumed a non-interventionist liberal state that defined freedom merely in negative terms, as state restraint from intervention in private lives. In this argument, there was no consideration of gender inequalities in both the private and public realms that obstructed equal democratic participation. The problem of power disparities between men and women, which victimized the weak, undermined their human rights, and required state action to redress, was rendered irrelevant to the case. The judgment assumed that marriage contracts were merely private affairs, contrary to the feminist claim that the private is political.

Moreover, the court argued that the contested article of the Penal Code contradicted Article 24 of the constitution because it discriminated on the basis of religious beliefs. The judgment of the court stated with a formalistic liberal perspective, independent of context, that if unmarried couples who live together are not punished by law, then those who contract a religious marriage should not be discriminated against either. The objections of the court concerning Articles 20 and 24 assumed that there was gender equality in the social, economic, and political realms and that religious freedoms could be extended without circumscribing women's other rights and further empowering men. The court also assumed that everyone had equal knowledge of secular and Islamic laws and what they entailed.

To bolster their new interpretations as liberal and progressive, the judges who voted to revoke the existing Penal Code article referred to the European Convention on Human Rights and the European Court of Human Rights (ECHR). They cited Article 8 of the European Convention on the right to respect for private and family life and Article 9 on freedom of religion and conscience. They also referred to the ECHR rulings and mentioned how important these two rights were for the ECHR. They cited decisions on how the European Court extended the protection of the right to private life not merely to official but also to unofficial marriages (Constitutional Court 2015, 5). Notably, these were cases of custody for children born out of wedlock, which could be a problem in Turkey as well, if religious marriages increased. The references to the European Convention and the ECHR would, presumably, further legitimize interpretations of the Constitutional Court majority as liberal and in line with secularism, since both these institutions were seen as liberal and secular by many secular Turks.

Three of the dissenting judges made a case on legal grounds. They referred to a previous verdict on the same issue, in which the Constitutional Court had unanimously rejected the annulment of the contested article. They underlined the importance of Article 174 of the constitution specifying how legal marriages had to be contracted in line with the Civil Code. They pointed to the constitutional provisions that aimed to preempt challenges to secularism and previous court verdicts on the issue (Constitutional Court 2015, 9–15).

One of the dissenting judges argued on more substantive grounds. He pointed out that the Civil Code was based on male-female equality and underlined that constitutional Article 10 on equality had been strengthened to make the state explicitly responsible for realizing this equality. He argued that over 90% of the population reconciled their commitment to the Civil Code with their religious practices by contracting both civil and religious marriages and that there was no impending demand for change by this majority. The punishment concerned would be abated once the civil marriage was contracted and hence did not intend to punish religious marriage, but rather to enforce the Civil Code, which recognized women's rights. In his dissenting opinion, he also pointed out that the 3% who contracted only religious marriages were less educated and had lower socioeconomic status and that some sanctions were needed to eliminate the negative results of such marriages on family and society. He further argued that those living together without marriage were fewer than those married only with religious marriage. These two groups were also different in socioeconomic and educational backgrounds, and so it would be wrong to compare them in terms of their implications for gender equality and for society at large (Constitutional Court 2015, 15–18).

From a feminist point of view, the Constitutional Court's reinterpretation of the constitutional articles on the rights to privacy and religious belief was a threat to women's rights (Akyol Reference Akyol2015; Aşan et al. Reference Aşan2017). Even though the majority of the court declared Article 10 on equality to be irrelevant to the case, the dismissal of sanctions for avoiding civil marriage was problematic precisely because it could have unequal consequences for women. Religious marriage in a Muslim country meant Islamic law with polygamy, unilateral divorce by men, and unequal inheritance rights for women. Without sanctions, the number of women marrying only with a religious ceremony could increase. In a religious marriage, women are likely to be at least economically more dependent on men and in a structurally weaker position, as orthodox religious interpretations expect women to be. In a country like Turkey, where women are still less educated and economically less independent than men, they would be making a choice to contract a religious marriage instead of an official civil marriage under conditions of inequality, without equal substantive access to economic, social, and political power or information. Six years after the amendment of the Civil Code, which granted equal ownership of property acquired during marriage in cases of divorce, close to half the women in the country were unaware of this right (Altınay and Arat Reference Altınay and Arat2007, 98–99).

Women who married only with a religious ceremony would have no access to the protections the Civil Code provides, including the provision for a minimum marriage age, protection from polygamy, provision of equal inheritance rights, and protection in divorce. Prior to the registration of a civil marriage, state officials check that the partners meet the minimum age requirements of the Civil Code and that neither partner is officially married to another person so that multiple marriages can be prevented. In Turkey, child brides married before the age of 18 are a major problem, constituting about 15% of all marriages, even with the protections of the Civil Code (UNICEF 2016, 152).Footnote ⁷ Young girls could be married off even more easily without the enforcement of an age requirement. The state enforces equal rights and legal responsibilities on both sides during marriage and upon divorce. This is crucial because women are likely to face poverty in cases of divorce, particularly because only one-third of women are in the labor force (Ministry of Family, Labor and Social Services 2019).

The scope of the protection that religious marriage offers women is controversial and interpreted differently in each country. Independent of this problem, there is no institution in secular Turkey to enact Islamic law for people who are married only with a religious ceremony. Thus, these women are left without even the weak protection that religious law could provide.

The Constitutional Court's verdict legalizing marriage according to Islamic law and without a civil marriage perforated the gender equality framework that the republic had defined. Appealing to liberal values, it initiated the unfolding of a religiously colored, illiberal gender framework in which the state encouraged traditional roles for women to complement male roles. This judgment was possible in secular Turkey only in a context of democratic backsliding, where the judiciary could adjudicate in line with the ideology of the aggrandized executive, and constitutional rights could be interpreted in line with this ideology rather than in the spirit of the secular constitution. In turn, the verdict helped the regime promote and legitimize a religiously inspired conservative ideology that would be the ideology of its emerging authoritarianism. Gender equality as a necessary if not sufficient condition of democratic rule was dismissed to expand religious rights, because at this point the emerging authoritarian regime needed to establish its religiously inspired ideological hegemony to entrench its rule. Expanding religious freedoms at the cost of gender equality would be normalized to build the culture of the new authoritarianism. The Civil Code that was protected by a special constitutional article as a founding law of the secular state was thus circumvented. The liberal reasoning used by the Constitutional Court served the needs of a hierarchical regime that increasingly restricted civil liberties and political freedoms to tilt the electoral field in its favor.

In October 2017, the parliament passed a law to allow religious personnel to perform civil marriages. Once again, giving the right to contract civil marriages to religious personnel could be interpreted as contrary to the spirit of Article 174, which aims to protect secularism, the Civil Code, and civil marriages. However, the government argued that this policy would facilitate registration of those who tried to contract only religious marriages by making it easier for them to contract a civil marriage (Uras Reference Uras2017). Under the new circumstances, where couples need not contract a civil marriage prior to a religious one, there would be a tendency to skip the latter, even when religious personnel are given the right to perform the civil marriage ceremony. In Turkey, religious personnel are civil servants, yet it is doubtful that they would encourage civil marriages, especially under a religiously rooted government. Religious personnel are trained to respect and prioritize religious law (Lord Reference Lord2018). It is not clear to what extent they believe in the importance of civil marriage. As officials who conduct religious marriages, which are not registered by the state, need not meet any minimum age requirement, and allow multiple marriages leading to polygamy, they would be likely to bypass these requirements of civil marriage. Thus, women can be deprived of the protection of the Civil Code, while child marriages and polygamy would increase.

Expanding only religious rights at the expense of other liberties does not promote free choice for women, particularly when civil liberties are increasingly restricted, the scope for criticism is narrow, and politicians in power are encouraging women in multiple ways to adopt traditional dependent roles that can restrict their options. Women can adapt their preferences to what is most easily available and ignore or undervalue what they think they cannot change or what is closed to them (Phillips Reference Phillips2007, 39). In Turkey, women were offered a broader range of religious options in less than free and less than equal circumstances, where an opponent could not expose their pitfalls. The new regime thus aimed to consolidate its conservative constituency, construct its ideological hegemony, legitimize, and normalize its increasingly authoritarian rule at the cost of jeopardizing women's civil rights.

REPLACEMENT OF INSTITUTIONS

A final strategy that Thelen delineates in the process of institutional change is displacement through the replacement of old institutions. This strategy developed in Turkey over time, beginning around 2011 and continuing to this day. The AKP displaced old institutions and replaced them with new ones to entrench its ideology, mobilize a conservative female constituency, and establish its own gender framework. One major displacement was the Ministry of State for Women and Family. The ministry was abolished in 2011 and replaced by the Ministry of Family and Social Policies, which was restructured in 2018 as the Ministry of Family, Labor and Social Services. The new ministry served as an umbrella institution for many groups and diverse interests besides women, including family, children, the disabled, the elderly, social services, and social aid. The abolition of a ministry for women to promote gender equality was a breach of international treaties that Turkey had signed, including CEDAW, and contrary to Article 10 of the constitution, which the AKP had amended to reinforce the state's responsibility for gender equality. The government recognized women merely as extensions of their families rather than as independent individuals with equal rights to men (Coşar and Özkan-Kerestecioğlu Reference Coşar and Özkan-Kerestecioğlu2017, 163).

At the level of women's organizations, the AKP hoped to displace those established by feminists or secular women fighting for equal rights and replace them with conservative ones (Doyle Reference Doyle2018). The governing elites would be supporting women in civil society, but using this support to promote their conservative gender ideology and to create a conservative female constituency. KADEM—Kadın ve Demokrasi Derneği (Women and Democracy Association)—which was established in 2013 as a civil society organization, would serve this purpose. (Diner Reference Diner2018). KADEM's relation to the state was unprecedented in the context of the second-wave women's movement in Turkey. The new association was organically linked to and supported by the AKP leadership. Sare Aydın Yılmaz, an AKP member who had worked in party administration and later became an AKP representative in the parliament, was the founding president of the association. Erdoğan's daughter Sümeyye Erdoğan was its vice president. KADEM endorsed the concept of complementarity between men and women. It sought “gender justice,” rather than “gender equality,” much like Erdoğan, who denied that there could be male-female equality because men and women were created differently (Koyuncu and Özman Reference Koyuncu and Özman2019).

The new association promoted this view as an alternative to a feminist concept of equality without critically engaging with these terms. The feminist concept was reduced to a misleading understanding of equal rights in which equality was equated with sameness. President Sare Aydın Yılmaz argued that feminist equality led to the “masculinization” of women and a “detachment from the female identity” in an article that she wrote to elaborate KADEM's understanding of complementarity (Yılmaz Reference Yılmaz2015, 108). To defend gender justice, she argued that difference meant complementarity and claimed that feminists sought not difference but sameness. KADEM thus claimed to propose a new understanding of equality, which meant equivalence based on a functional division of labor between men and women, assigning traditional roles to each. The advocates of this perspective did not engage with the patriarchal consequences of this arrangement, whereby the economically weak would become dependent on and submissive to the economically strong. Even though Muslims believe that men and women are equal before God, complementarity could lead to a hierarchy of powers and a restriction of opportunities associated with power differentials. KADEM dismissed these issues.

In line with its concept of gender justice, which was based on a misreading of concepts of equality that feminists championed, KADEM endorsed various government initiatives related to women. For example, in support of the AKP government's foreign policy, KADEM sought to help Sunni Muslim migrant women from Syria and criticized the oppression of Muslim Rohingya women in Myanmar. It initiated social service projects, including organizing visits to houses for the elderly and preparing dinners to break the religious fast that the AKP party organization also promoted. It gave explicit political support to government as it mobilized women to vote for the AKP in elections.

KADEM's visibility and power increased as the political regime became more exclusionary of secular groups and restrictive of freedoms. In the critical 2017 referendum when Erdoğan changed the country's parliamentary system to a presidential system in order to aggrandize his rule, KADEM president Sare Aydın Yılmaz addressed women, arguing that the new system would liberate them. Aydın urged women to vote for the presidential system to “liberate justice and freedom from the yoke of tutelage and allow national will to reign” (Yılmaz Reference Yılmaz2017). This referendum took place under a state of emergency and in a context in which the separation of powers had already eroded and the opposition could not voice criticism (Bali Reference Bali2018). How such a referendum would “liberate justice and freedom” was not problematized.

In turn, the government supported KADEM with material and symbolic state resources. President Erdoğan delivered the keynote speeches at conferences that KADEM organized, thus both honoring the association and having another medium to stigmatize feminists, for example by falsely claiming that they rejected maternity. Using KADEM's platform, he could reiterate his views on women's primary responsibilities as mothers and shape the views of his female constituency (Hürriyet 2014, 26). KADEM thus helped the government mobilize pious women and widen the rift between secular women who opposed the conservative authoritarian state and religious women who supported it.

By 2019, the association had representative offices in half the provinces in the country—a feat no other women's organization in the country had achieved (KADEM 2021). It had the resources to organize conferences and seminars, publish its own journal, and initiate projects in line with KADEM's and the government's gender complementarity agenda. KADEM became the main representative of Turkish women in international platforms and conferences. When Turkey hosted the G-20 meeting in 2015, it was KADEM, not any other established women's organization, that hosted the W-20. The AKP could thus displace secular women's civil society organizations that demanded equality and expansion of opportunities for women rather than the promotion of traditional roles at the same time that it was building an institution to mobilize a constituency of conservative women.