November 4, 2007
By Ernesto Castañeda
DNA Tests: a Great Proxy for Discrimination
During the years leading to the completion of the Human Genome Project, many of the scientists involved in the project, as well as concern citizens and people working on bio-ethics, warned that DNA tests could be used to deny jobs, insurance… and now, it seems, even immigration papers: a recently passed law in France would require DNA tests for certain cases of family reunification in order to prove family links.
This law is called the “Loi Hortefeux” because it was proposed by Brice Hortefeux, Minister of Immigration, Integration, National Identity and Co-Development, who also happens to be a close friend of Nicolas Sarkozy since 1976. According to the deputy Noël Mamère from the Green Party (AFP), and many others, Sarkozy intended to use this law to make good on his campaign promise of tighter immigration control, and pander to the followers of Le Pen at the far right who voted for him in the last election.
The thorniest issue in the law is the amendment proposed by the Deputy Thierry Mariani, thus called “the Mariani amendment”, which would require that DNA tests be performed as “scientific” proofs of kinship, on people applying to live in France coming from countries that lack formal civil registries or whose quality is doubtful (read: certain parts of sub-Saharan Africa). 
What the media has been reluctant to discuss are the heavy racist connotations of this amendment, including the following: 1) The presupposition that immigrants are liars who aim to fool the government, 2) The prejudiced view that black Africans “all look alike”! So how would the government know that when a black person living legally in France requests that their children join him/her whether or not these are in fact their kids and not nephews, or the children of friends? This is the justification that some people in the streets use to justify the law. 3) Another of the premises is the sad fact that sometimes parents and children are willing to be away from each other and/or from their other family members as long as they find a way to migrate, and that the state should not do too much to guarantee the physical unity of migrant families.Divided Families
While there are cases where applicants lie in order to get papers, it is sad to see that the government has chosen to generalize the bad faith of all the applicants, and does not look at the set of stringent requirements that make staying legal something close to a miracle (for a similar issue in the U.S. see Menjivar, 2006). This law and this amendment will keep families divided for longer, and increase the emotional pain that these family separations entail, since its implementation could dissuade some people from even applying or it could delay the bureaucratic process because of all the things that are to be required in order to get the test (see bellow).
While many families are divided, only a few are approved for reunification. In 2005, only 22,978 people were allowed to enter France through family reunification legal channels. And only 11,351 of them were children. So, Isabelle Monnin of the Novel Observateur asks, why would Sarkozy want to go against such strong opposition in order to stop the arrival of 11,000 children a year all of whom have parents in France? Is this really a measure of immigration control or is this just a symbolic way to pander to the followers of Le Pen without really changing much?
Because of the very few people that would be directly affected by the Mariani amendment, the French Prime Minister François Fillon called this law a “detail.” This declaration caused an outrage since it recalled Le
Pen’s declaration of 1987 when he described the Nazi gas chambers as a "detail of history" (BBC). The Mariani amendment indeed generated so much opposition because it stirred up memories of the Vichy Regime and its collaboration with the Nazis in the racial victimization of Jews. That is why some opponents went as far as calling the law in question the equivalent of the “final solution” for immigrants. Former Prime Minister Villepin, talking to the media, asked for the “pure and simple” withdrawal of the Mariani amendment. He said that, "the fact of mixing genetics and immigration seems to me reprehensible in itself. This may seem something minor. But in terms of principles one should never compromise.” ("Le fait de mêler la génétique et l'immigration me paraît en soi condamnable… Ce symbole n'est pas acceptable. Cela peut paraître mineur mais ça ne l'est pas. En matière de principes, one ne transige jamais" (Le Figaro/RTL, AFP/Le Monde). Villepin contradicted his successor Fillon by saying that in terms of principles nothing is a detail. Villepin’s comment recalled the negative precedents that resulted from mixing pseudo-science and racial claims leading to Nazism.
The Bad Science behind the Tests
There have been few details about the technical application of the DNA tests following from this law, but most probably the test would not be a test for specific genes in the strict sense of the word, but just a simple eye comparison of DNA fingerprints obtained through PCR and Gel Electrophoresis (see photo). If the mother and the child in question are indeed not blood relatives, obvious differences would occur, but the differences between aunts and cousins from small tribal groups could not be as clear, thus defeating the stated purpose of the law. The public 
discussion has not yet addressed the scientific aspects of this test, which serves as a clear example of the role of expertise in creating authority. If the geneticist says that the people are related then they most be!Caveats of the Mariani Amendment
Because of the strong criticisms received, the test would be only applied to mothers, since there is data that shows that many men are not the biological fathers of “their children” without ever knowing it, so the proponents of the law “did not want to cause any intra-marital” problems. The test would probably be reimbursed by the state if maternity is shown, so cost would not be an issue. The test would require the intervention of a judge, and would be “voluntary” and require a written request for the test by the applicant; despite all of this, it could indeed help in reunifying more families, which would be a positive and maybe unintended consequence.
The law also calls for the approval of the National Consultative Ethics Committee, which presented the opinion that the amendment “contradicted the spirit of the French law” even before the law was voted.
The Mariani amendment was watered down in the discussions and it will undergo an experimental phase until December 31st, 2009. Nonetheless, it stayed in the law proposal.
Former government figures like Villepin openly criticized the Mariani amendment. But members of Sarkozy’s government did so, as well. Fadela Amara, the daughter of Algerian immigrants, said on September 9th, 2007 that she was tired of the instrumentalization of immigration for political purposes and that such an amendment was disgusting ("dégueulasse"). This created a large discussion in the media and within Sarkozy’s cabinet. Some even called for her to leave Sarkozy's government. Former Presidential candidate Segolene Royal said that someone in government has to speak French! and not use such kinds of words (so much for the left candidate). Amara said she would stay because she is developing a plan for the banlieus (poor peripheral neighborhoods).
"TOUCHE PAS À MON ADN"
On Sunday October 14th, 2007 intellectuals, politicians and artists gathered together at the Zenith in Paris to talk against the Law Hortefeux and specifically the Mariani amendment. The event was organized by SOS-Racisme, a anti-racism NGO, and the publications Charlie Hebdo (satirical) and the Libération (left). They started a 
petition online that has been signed by over 300,000 people, including famous personalities of French public life such as singers, writers, politicians, sportspeople and others. See the list at, a “who is who” of the left at: (http://www.touchepasamonadn.com/). The logo of the campaign is “Touche pas à mon ADN” or “Do not Touch my DNA!” which builds on a previous and well known campaign by SOS Racisme that was called “Touche pas à mon Pote” or “Do Not Touch my Friend” which was about building inter-racial solidarity against racism, hate crimes, deportation, etc.The Zenith of Opposition
The media reported that more than 6,000 people were present at this concert arena for the event against the DNA tests. Probably even more people were present (see pictures). I found about it the day before while reading Le Monde in Parisian Café and decided to go. A couple of people had extra-free tickets that had been distributed free of 
charge through FNAC, and the sponsors. I was able to get in after begging for tickets since they were in high demand. (I must say that even among so many progressive people, when asking for tickets my foreign accent caused some negative reactions!)
I entered the huge place and noticed that the arena was full of many middle aged, middle class people. There was an important component of older people, as well as a large group of high school students mainly standing towards the front as if in a rock concert. There were six or seven 
music acts by well known artists but they only sang one or two songs each, so it seems that few people went there for the music only. Although, the musical performances added a lot to the “collective effervescence” that Emile Durkheim would talk about. Among the performers were Balibar (pop), Renaud (rock) as well as folk, reggae, and rap performances.
Interestingly enough the majority of the attendees did not seem to be of direct immigrant origin but “French.” The few members of color in the audience were often videotaped and projected upon the large screens to show the inclusiveness of the event. Indeed very few immigrants or people of color spoke, and not one “immigrant-to-be” or member of a divided family spoke as such. All the spokespeople were established officials, politicians, intellectuals, or celebrities. The more than three- hour long program was full of music, powerful speeches and important people. I was surprised by the extent of the rally and the mobilization of resources. This was probably the best rally I have ever attended! And it was indeed a course on French civism.
Speeches and Nationalist Discourse
As François Hollande said, the amendment “institutes a discrimination between French and foreigners (one of the reference to foreigners as such), and puts genetics where it should not be” ("instaure une discrimination entre étrangers et Français, et met la génétique là où elle n'a pas sa place.”) Philipe Val, the director of the satirical publication Charlie Hebdo, said that this was “The first meeting of republican opposition to Nicolas Sarkozy. ("C'est le premier meeting d'opposition républicaine à Nicolas Sarkozy,"AFP/Le Monde 15/10/2007). One had this impression when listening to so many people from the left and so many members of the socialist party (PS), now the leaders of the opposition. Only this could explain how well the event was organized. The half of the country that did not vote for Sarkozy was there given an excuse to repudiate him.
One of the few "organic intellectuals" who spoke was a representative of the famous French group of women from Muslim origin who react against traditional gender roles, “Ni Putes, Ni Soumises.” Saying at the rally “Ni Putes, Ni Soumises, Ni ADN” and echoing Fadela Amara, someone very close to this group and now in Sarkozy's, government, saying that the law was indeed extremely disgusting. And then she added where is the "integration"?(Video by Ernesto Castaneda)
The Republican Ideal and the French Exceptionalism
Part of the government’s argument in favor of the DNA tests was the argument that many other countries did it. To this argument, many of the speakers say “yes, BUT NOT IN FRANCE”, and then placing France as the moral compass of the west. It is interesting to note that in analyzing the political discourses given throughout the night at the Zenith, the use of the words “Republic”, “Nation”, “History”, “Political Tradition”, “Values” were used repeatedly. To someone used to American political discourse these would have sounded as words used by conservatives in the right, interestingly enough this words were used to get back to Sarkozy, and not in an ironic way, but in strategic and also deeply felt discourse. It seemed that many people attending were so strongly opposed to the amendment not because it was "anti-foreigner" but because it was "anti-French" in spirit. A subtle but an important difference where classical political liberalism and the French historical record were more important than the ideas of comsmopolitanism or multiculturalism.
Speaker after speaker cried against the Mariniani amendment that called for the French tests because it was “anti-French”, because it went against the great republican history of France, against is tradition of giving the world the Declaration of Human Rights, speakers said that this recalled the actions of other countries (read: Germany) NOT France. Thus there was an implicit message of French superiority and of being on a moral higher ground.
Even while talking against an anti-immigration law, paradoxically the content of most speeches remained deeply nationalistic, almost chauvinistic and very ethnocentric, although a reggae singer and two rappers played, all of them black, played their music, this was a "white French" meeting. It was not the families that would be directly affected who were present but many others showing solidarity. Although the extent of the progressivism for some of the people in this monumental meeting was repudiation of the DNA clause.
As a foreigner in the audience sometimes I felt scared by the nationalistic tone of the speeches, where openness towards immigrants was to the extent that they spoke parisian French and behave like Frenchmen even if their skin was of another tone. These arguments were not spelled out but they were implied. This was something that I had a hard time conveying to people I met in the street after the meeting. The cameras did not capture this as much because these arguments were taken as evident but they constituted the major part of most speeches. Many of the participants meant well but unconsciously they had the French republican model deeply engrained (part of the collective doxa, the unquestionable, as Bourdieu would say).
At times the rally turned into a rally for “the honor of France”, a fight for its “real identity.” All of them, important issues that show the historical memory that the French people have and their consciousness about their great historical legacy of which they feel proud off and which they want to extend into the present and future, something that Sarkozy and Le Pen also claim to want to achieve. Same goals, but through different means.
Nonetheless, the new law will also require that all immigrants learn French before they are granted legal residency. It will also allow for systematic gathering of official statistics about ethnic groups for the first time in France. There is also a provision in the law to put more police on the streets in order to achieve the previously set goal to deport 25,000 undocumented migrants during 2007.
The law was approved with 185 votes in favor, and 136 against, in the Senate, and 282 votes in favor, and 235 votes against, in the lower chamber (it needed 259 votes to pass).
The worst thing is that many other countries have similar laws, including the U.S. In a letter to the editor of the New York Times, a law Professor recounts of stories where adopted children of African parents were denied migration papers by U.S. authorities (Heller, 2007). Supposedly in the French case, if the parents are able to show adoption papers this would serve as a proof of paternity instead of the DNA tests. The problem rests in informal adoptions, like the guardianship of a niece of nephew after their parents die, something very common in Africa.
http://www.dailymotion.com/video/x37p6m_bertrand-delanoe-au-meeting-touche_news)
(http://www.dailymotion.com/video/x39mb0_touche-pas-a-mon-adn-au-zenith_news)
Popular Protest
In contrast to the well organized and well funded meeting at the Zenith. The weekend after, on Saturday 20, 2007, immigrant associations called for a march from Belleville to the National Assembly. This time there were more immigrants participating, a great number of them black, some people from the Maghreb, and many “French” people marched on the streets in more pro-open borders and inclusive spirit, still for the most part people kept to the groups they had originally come with: student groups, groups of friends, unions, social service organizations, collectives of sans papiers, etc. 
The march was peaceful and well attended unfortunately this protest made a short paragraph in most French newspapers and then was forgotten...
The New Contentious French
Many families were present at the march, including new French families who have already adopted the language of the local contentious politics, a way to show their incorporation and their political participation.
(Videos by the author. I apologize for the quality of the second video but it is the audio that is important.In the first one the women cite things whose situation they are tired of. The meaning of the second singing is something like "Regularization for all the undocumented, it is the law we have to change, it is not them that one should kick out but Sarkozy..." ).
At this meeting one could see the traditional repertoire of contentious performances: marching, banners, chants, signs, petitions, while the populations were different its elements were very similar to those of the marches for immigrants rights in the U.S. Although, I talked to some of the people participating and because I said I lived in New York, they told me that they thought that marches like this never happen in the U.S. because 
"the French protest about everything" but "the Americans are not very political, and they are busy buying things and watching TV." (A wrong empirical fact, nonetheless important about understanding boundary formation). It is funny that before the start of the meeting at the Zenith there was a cartoon of Sarkozy sitting in a sofa telling people "it is funny you are here while you could be home watching a movie and eating some pizza!"
Constitutional Challenge
The Ruling of the Constitutional Council
The Constitutional Council was created in 1958. It is not the equivalent of the Supreme Court in the United States. It is composed by 9 members. In addition any Former French Presidents are life members. The members are appointed by the President of the Republic as well as one nominated by the presidents of the two legislative chambers. The present Constitutional Council, often called the “sages” or wise men (yes, all members are male), is formed by former Presidents Valéry Giscard d’Estaing (born in 1926), Jacques Chirac (born 1932). And 9 other members two of them nominated by Chirac and all, except one, were proposed by members of the right (for full member list go here).
On November 14th, 2007, the Constitutional Committee declared that the legislative proposal regarding DNA tests included in the new immigration law was constitutional as long as the tests also respect the laws of the country of origin (very few people are clear about what is that supposed to mean). Concluding that discretionary and differential treatment depending on country of origin is NOT anti-egalitarian. While it declared that any official COMPILATION of ETHNIC STATISTICS of people living in France unconstitutional, since it violates the principles of equality espoused in the French Constitution and its declaration of human rights. Few people have bothered to point out the contradiction between these two rulings, one in favor of inequality within France and the other one accepting different administrative rules for people from different countries. Obviously this group of wise men cares more about political and ideological concerns than about philosophical coherence.
So, the heinous DNA tests have been symbolically approved, although probably rendered inapplicable by so many caveats, while the law to finally gather statistical data to look empirically at issues of de facto inequality between people who are theoretically equal was disapproved by Chirac who opposed this idea throughout his 12 years as President.
AFP. Aprueba Francia exigir ADN a inmigrantes. Reforma, Octubre 24, 2007.
AFP. « Tests ADN : les députés socialistes déposent un recours devant le Conseil constitutionnel »
Le Monde. 25 Octobre 2007AFP. « Affiche éclectique contre les tests ADN au Zénith à Paris » Le Monde. Octobre 15, 2007.
Heller, Jeffrey. 2007. "Letter to the Editor. DNA and Immigration." The New York Times. October 27, 2007.
http://www.nytimes.com/2007/10/27/opinion/lweb27france.html?ex=1351137600&en=9ec74ddf78ff1925&ei=5124&partner=permalink&exprod=permalink
Monnin, Isabelle. « Immigration et ADN. Statistiques » le Nouvel Observateur. Septembre 20th, 2007.
http://www.lemonde.fr/web/imprimer_element/0,40-0,50-979200,0.html
Menjivar, Cecilia. 2006. “Liminal Legality: Salvadoran and Guatemalan Immigrants’ Lives in the United States.” American Journal of Sociology, 111 (4): 999-1037.
Immigration DNA Testing for United States Immigration
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