Earlier this month we wondered aloud, “Will France’s Highest Court Grant These 2 Lesbians Marital Rights?” Now we have our answer: no. A ban on same-sex marriage in the country does not violate the Constitution, the country’s Conseil Constitutionnel ruled in a decision that says it’s up to Parliament to create the laws. Which means Corinne Cestino and Sophie Hasslauer, who’ve been together for 15 years and have four children, can try to lobby lawmakers to grant them the right to have their union recognized. Fun!
Danny
So France’s constitution is worthless. The nation’s motto “Liberty, Equality, and Fraternity” – should be “Hypocrisy, Bigotry and Tragedy”
Andrew
This really isn’t surprising. Remember that France has a civil law system as opposed to a common law system. In a civil law system, the court must cite legislative precedent for it’s rulings. It is not allowed to rule based on it’s own findings or abstractions. So even if the court did believe that marriage equality was the right thing to do, unless there was legislation to stand on it wouldn’t have the right to enforce it.
redball
@Andrew:
I know ~0.00 about jurisprudence, so I’m just trying to take in what you wrote. How does France ever manage to make progress if there must be legislative precedent for every new ruling…? Seems like circular logic.
Or maybe a judge has to “get creative” and find precedent where others did not see it before?
justiceontherocks
125% of the judges in France are catholic. what does anyone expect?
kayla
France the bastion of secular humanism…..how are the Atheists gonna spin this one to blame Christians, oh just make up statistics claiming that 125% of the judges in France are Catholic……genius!!! By the way, you also can’t adopt kids in France…….just saying…..
Jim Hlavac
@redball: It’s true, in civil law jurisdictions, which are pretty much every country on earth except the English speaking world, which are common law, a judge can not just decide something on his own. He must only rely on what already is law. We’re used to judges declaring laws invalid, such can not happen in civil law regimes. There, a judge can only rule if a case does or does not fit the law as already written. Even using prior decisions (stare decesis) to bolster a new interpretation of an existing law is suspect or not allowed in civil law jurisdictions. While the common law relies heavily on precedent, and whatever you can convince a judge the law is. Which is why common law countries have more lawyers, more litigation, and more rights, and a bit more liberty.
Lucas
Just a few precisions:
The two laws questioned by this couple entered into effect in 1803 and 1804, under the influence of First Consul Napoleon Bonaparte (right before he established himself as Emperor).
The first one of these laws defines the minimum legal age (for wedding) by using the words “the man and the woman”;
The second one states the civil officer must certify witnessing the two parties taking each other as “husband and wive”.
At the time, Napoleon’s main worry was the establishment of an authocratic AND republican regime right after the Revolution. The Napoleonic code (which influenced almost all of the European countries’ law systems) was also designed and enforced in 1804. So they kind of had other stuff to care about.
Napoleon spread the prominence of civil marriage over religious marriage throughout Europe. I firmly believe it was a great goal to pursue (regardless of the guy).
It was a different time and there was no reason, be it a moral one or a political one, to design these law regardless of the sex of the person.
The Conseil Constitutionnel’s ONLY responsability in all this is to check that these laws are not VIOLATING the current french Constitution – and not to say if they consider them to be fair or not.
I believe they were right to, basically, tell the lawmakers to grow some balls and design a law adapted to our current (french) society and following public discussions, instead of asking a handful of people to decide whether laws from 2 centuries ago remain relevant. Plus, did anyone really expect them to invalidate these laws, based only on the use of “man and woman”?
They stated that “the right to lead a normal family life does not imply the right to marry for same-sex couples”. Well they are right, because there simply is NO law that requires it – such a law HAS to be designed in order for things to change.
Peace.
Danny
So the bottom line is France is harming the 2 billion+ family members whose families have gay family members. Yeah, that’s liberty and justice at work.
There are a lot of people on Earth tolerating having their human rights violated while corrupt politicians and religious leaders build their careers and line their pockets violating them. You can really see why the rule of law collapses so frequently on Earth.
Frank
C´est la vie..
D.R.A.
People are constantly lauding Europe for being so much more progressive than the US. I wonder where those people are?
afrolito
Don’t blame France, blame the muslims and Africans who have successfully spread their rabid homophobia.
priscilla queen of the jungle
@Jim Hlavac:
Much appreciated. And fascinating. It seems pretty amazing, then, that France has come as far as it has…given those constraints on its legal system.
Francis
Actually, support for SSM is around 60% in France. Andrew, Jim and Lucas are correct. It has to be legislatively enacted. We’ll see if and when that happens.
divkid
plus ça change, plus c’est la même chose!
the crustybastard
The court’s logic was 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.”
In other words, they say that existing discrimination that makes a gay couple’s situation different is a justification for continued discrimination.
TommyOC
Stupid, close-minded, bigoted, homophobic Americans. Just another reason why the European Union and its member-states are light-years ahead in the march for equality–
Oh… wait…
Ari
I understand the (main) opposition party fully supports marriage for same sex couples, and, I may be wrong, but I think they have a good chance of winning the next election.
Francis
True, Ari. From what I’ve read on the ruling and the prospects of legalization in the future, it’s actually quite bright for us. There is majority support with the population, and also the fact that other European countries like Spain, UK, Netherlands etc. has full civil partnership/marriage equality puts pressure on France to sort of bring themselves into the 21st century. Also as you say some of the main opposition parties to Sarkozy, who is very unpopular in France, are for same-sex marriage.
Ultimately, blaming an entire country and their citizens for the actions of it’s government is irresponsible. Instead of fighting about which country or continent is better than the other, we need to come together as a community to fight injustice worldwide.
divkid
@D.R.A.: @ tommyOC
it iS more progressive in western europe than the U.S as a whole, it’s a statement of fact. but probably no more progressive than *your* most enlightened state. and it’s not utopia — outside the main urban centres you will likely encounter hostile opinions or begrudging tolerance. and the influence of religion doesn’t stop at national borders.
generally though, but not equally or uniformly, we have a more relaxed live-and-let approach to matters of sexuality, abortion, etc., with even the more conservative areas trending in the direction of greater personal freedom. it doesn’t seem to be the same uphill struggle you’re having. on the “ground ” we feel more acceptance, or maybe it’s just less hostility.
but that signal hasn’t always made it to the top yet in every region — institutional change often lags behind the public mood.
our frustration with speed of progress in the U.S is the same your own: surely your system of protections and rights could/should offer the best prospect in the history of humanity for a citizen to exercise his full rights and pursuit of personal liberty without impediment — such as discrimination born of the utter irrelevancy of whom someone chooses to love. further it could offer a beacon of hope and liberty to the rest of the world on this issue.
instead the messages some of its envoys are sending out to the rest of the world are of a fundamentalist anti-gay tone. exporting intolerance all over the world has become a chiefly american industry and they are very well financed.
yes, you elected a black president, which was momentous, even if it did take several hundred years to achieve; and your probably ready to accept a woman. but how realistic would the chances be for any serious presidential candidate admitting to not having a faith. and what would your best guess for the likely time scale when you elect your first openly a gay commander-in-chief? — like, say in iceland!
please don’t see this as an attack or one-up-man-ship. we’re with you every bit of the way in this struggle. when you suffer a set back the whole cause does, because the U.S.A still has some leverage in the world to effect positive change and widen the circle of liberty; and its eventual diminution with the rise of competing powers means the future status of any of us, is, in the long run, less than assured.
D.R.A.
@Francis: The UK does not have marriage equality. That’s a battle gay Britons are still fighting.