Clarifying the French Rejection of Same Sex Civil Marriage

Bill Muehlenberg is absolutely beside himself at the French Court of Cassation’s (their plus ou moins equivalent of our SCOTUS) rejection of same sex civil marriage:

But the real story here is about all those places which have not legalised it, and/or have fought against it. The media tends not to play up these stories. But there have been a number of defeats for the homosexual lobby on this issue. For example just recently in France the Constitutional Council has ruled that there is no conflict between the current law banning homosexual marriage and the rights enshrined in the nation’s constitution.

Here is how the story has been reported: “France’s Constitutional Council, its highest court for constitution issues, ruled on Friday that the country’s definition of marriage as between one man and one woman is valid under French constitution.

“The definition was challenged by two lesbians who conceived children by artificial insemination and wanted to legally call their relationship a ‘marriage.’ They battled for rights reserved for married couples, including inheritance rights and joint custody. The case was passed to the Council by the French Court of Cassation in November and the court decision was issued on Friday.

“The Council ruled that the ‘difference in situations of same-sex couples and couples made up of a man and a woman … can justify a difference in treatment concerning family rights.’ The panel’s decision was supported by two articles in France’s civil code ‘in conformity with the constitution’ that define marriage as the union of a man and a woman, reported the Globe and Mail.”

The trout in the milk here is the existence of civil unions in France.

France has had civil unions since 1999.  What’s different from what we have here, however, is that they are available to both same sex and opposite sex couples.   Since their institution civil unions have become de rigeur amongst opposite sex couples who wish legal recognition of their relationship.  This is because a) entry and exit is much simpler and b) the secular French consider marriage a religious institution, which drives them away from marriage and towards civil unions.  (Re the latter, they’re right, it is a religious institution.)

Today 95% of civil unions are between opposite sex couples and, if present trends continue, it won’t be long before civil unions outnumber marriages.  There may be a few maudlin sentimentalists in the French LGBT community about marriage, but they’re trampled in the rush by the rest of society which is moving towards civil unions.  This may be one explanation of the French Court’s blasé attitude towards same sex civil marriage.

It’s also worth noting that, in France, ministers of the Gospel are not allowed to be agents of the state in civil marriage.  This is why people of faith there “get married twice,” once by the state and again by the church (unless you’re King Leopold III of Belgium, in which case you reverse the order.)   Although there may well be a French law or regulation prohibiting the ecclesiastical solemnisation of a civil union, I don’t see a Biblical reason why a Christian couple can’t be united under a civil union before the state and in marriage before God.

Personally I would prefer the state to stay out of the relationship recognition business altogether, but the French idea of civil unions for everyone is the best “Plan B” I’ve seen.   It sure beats the idiotic situation we have here in the US.

Mr. Muehlenberg, like many advocates of “traditional marriage,” needs to do a little deeper digging before he blows the trumpet of victory.

7 Replies to “Clarifying the French Rejection of Same Sex Civil Marriage”

  1. Hear, hear. But what would you propose the U.S. do re the tax situation for marrieds/singles/heads of household? Ethan and I have talked about getting married for all the obvious reasons – and concluded that given our present economic situation, it would be idiotic, tantamount to writing a five-figure check to Uncle Sam each year. Quite opposite the way W intended, yes, the tax code does indeed influence some relationships…


  2. First: the old country has struck again…

    The uneven treatment of the tax code re marriage a) antedates George W. Bush and b) is only the tip of the iceberg concerning government inspired disincentives toward civil marriage.

    Obviously abolishing civil marriage would end all of this. In the meanwhile a progressive reduction in the legal treatment of married and unmarried people would go a long way to making the playing field more level and equitable. The LGBT community has hung their hat on same sex civil marriage; they should have taken a more careful look at the way heterosexuals actually dealt with its consequences before making it a “make or break” issue; they’ll find it’s a break issue whether they make it or not.


  3. Article 433-21 of the French Penal Code forbids the celebration of a religious marriage between parties not legally (civilly) married.

    Mandatory civil marriage is regarded as one of the pillars of the secular (laïque)republic. If there are different forms of marriage for different classes of citizens, then how is the Republic one and indivisible?

    French oppossition to same-sex marriage has been led by jurists, for whom the central principle of Republican marriage is Article 312 of the Code Civil – “The child conceived or born in marriage has the husband for father,” a principle derived from Roman Law. This is the cardinal difference between marriage, on the one hand and PACS (Civil Unions) or unregulated cohabitation on the other. Accordingly, they see same-sex marriage as, essentially, pointless.

    As le Doyen Carbonnier, the leading commentator on the Civil Code bluntly put it, “At the heart of republican marriage is not the couple, but the presumption of paternity,” a view endorsed by the courts, including the Court of Cassation, in the notorious Bègles case and by the French Senate.

    Few Americans, on either side of the debate, are so unsentimental.

    Marriage remains very popular with the rich, with peasant proprietors and with Muslims.


  4. Michael, thanks much for your clarifications.

    I figured there might be a prohibition on religious marriage following a civil union, but wasn’t sure.

    The paternity issue is certainly important, but the fact that both same sex and opposite sex couples have an option for legal recognition of their relationship does, in some ways, reduce the impulse to broaden the definition of marriage.

    You are right about the sentimentlity of Americans re marriage. That’s what has made the whole debate so acrimonious without addressing some of the legal and social welfare issues that have driven down the marriage rate in the U.S.


  5. You are right that it was the availability of the PACS that led Carbonnier to seek for the specific differential of marriage.
    This he found in the presumption of paternity. The Court of Appeal followed him in the Bègles case in 2004/05: finding that its “specific and non-discriminatory character was the result of the fact that nature had limited potential fertility to couples of different sexes… Clearly, same-sex couples whom nature had not made potentially fertile were consequently not concerned by the institution of marriage. This was differential legal treatment because their situation was not analogous”

    Likewise the Senate: The presumption of paternity of the husband rests on the obligation of fidelity between spouses and reflects the commitment made by the husband during the celebration of marriage, to raise the couple’s children. The report presenting the order to the President of the Republic rightly points out that ” it is, in the words of Dean Carbonnier, the ‘heart of marriage,’ and cannot be questioned without losing for this institution its meaning and value.”

    It is significant that, in a country so committed to the principle of laïcité as France, no one has suggested that Carbonnier’s views, or those of the Court of Appeal, are either the result of religious convictions or an attempt to import them into his interpretation of the Code.

    Sorry for the long post, but the material is not available in English (my translation) and I thought some people might find it interesting. So very different to the American approach to the question, on ether side.


  6. Thanks again for the information, it is lacking in our debate on the issue.

    Although I think the French approach to this and other matters has merit, sometimes their “Cartesian” logic isn’t quite as Cartesian as they think!


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