January 28, 2011
France's Constitutional Court Upholds Ban of Same-Sex Marriage
In a relatively brief (by US standards) and long anticipated opinion (English translation), the court reasoned that the issue of equality - - - or not - - - between same-sex couples and opposite sex couples is one for the legislature and the court should not "substitute" its own judgment. The French opinion provides:
estimé que la différence de situation entre les couples de même sexe et les couples composés d'un homme et d'une femme peut justifier une différence de traitement quant aux règles du droit de la famille ; qu'il n'appartient pas au Conseil constitutionnel de substituer son appréciation à celle du législateur sur la prise en compte, en cette matière, de cette différence de situation....
This reasoning is familiar to those who have read other cases, in the US and elsewhere, that have rejected challenges to excluding same-sex couples from marriage.
France has had same-sex civil unions since 1999, but the status lacks the parental and inheritance rights accorded to married couples.
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The Constitutional Council was following the Court of Cassation in the Bègles Case (05-16.627
Arrêt n° 511 du 13 mars 2007) which, after setting out the petitioners’ claims dismissed the appeal in a single sentence, “But, noting that according to French law, marriage is a union between a man and a woman; that this principle is not contradicted by any of the provisions of [the European conventions] &c”
The Code Civil contains no formal definition of marriage, but, going back to le doyen Carbonnier, in the 70’s, commentators have found a functional definition in Article 312, “The child conceived or born during the marriage has the husband for father.” This led Carbonnier himself to write that “The heart of marriage is not the couple, but the presumption of paternity,.” An astonishing remark, but one adopted by the French Senate in its 2005 report on filiation, when they said " 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."
Since PACS (Civil Unions) have been available for both same-sex and opposite-sex couples since 1999, many jurists – and it is jurists that have led this debate – see Article 312 as what distinguishes marriage from both PACS and unregulated cohabitation.
Posted by: Michael PS | Feb 15, 2011 3:58:13 AM
Posted by: cinsel sohbet odaları | Dec 5, 2011 1:05:38 PM