French high court to hear gay marriage case

by on November 19, 2010  •  In Family law, Marriage

The Constitutional Court (or Council) of France will consider a case challenging that nation's ban on same-sex marriage. France's highest court of appeal, the Cour de cassation, referred the case to the Constitutional Council, which has sole authority to rule on whether the prohibition of gay marriage violates the French Constitution. 

According to press reports

The request came after individuals in August asked a court in the northeastern city of Reims to look at the legality of articles of the civil code which ban same-sex marriages. The unnamed individuals said the articles were unconstitutional because they "limit the personal freedom of a French citizen to marry someone of the same sex". 

The Court of Cassation said that gay marriage "is today the subject of a broad debate within society, notably because of the evolution of morals and the recognition of same-sex marriages by the laws of several foreign countries". 

According to the Court of Cassation website, the questions presented in the case (No. F 10-40042) are as follows:

"Sections 144 and 75 of the Civil Code – are they inconsistent in their application [with] the preamble to the Constitution of 1946 and 1958, in that they limit the liberty of a French citizen to marry a person of same sex? "

"Sections 144 and 75 of the Civil Code – are they inconsistent in their application [with] the provisions of Article 66 of the Constitution in that they prohibit a court judge to authorize marriage between persons of the same sex?"

Since 1999, French law has included the legal status of PACS, or pacte civil de solidarit√©, which is roughly comparable to civil unions. Both same-sex and different-sex couples have the option to enter a PACS, which is registered by a clerk of court. In some areas, couples signing a PACS can choose to have a formal civil ceremony, comparable to a wedding performed by a court official.

If the Constitutional Court eliminates the ban on gay marriages, presumably all couples would then be able to choose between marriage and a PACS. (This is also the outcome being sought by a new equal relationship rights campaign in Britain.) It is only in that legal environment that the goal of genuine choice in family formation could be said to exist.


One Response to French high court to hear gay marriage case

  1. daftpunkydavid November 19, 2010 at 1:50 PM

    it is a very good development, even though the conseil constitutionel (whose members include chirac and giscard) is very much right-leaning. very much so.
    i therefore don’t know the likelihood of them allowing de facto marriage equality by asking the legislature to pass a new law repealing the old one (which is what would happen if they ruled the ban was unconstituional vis-a-vis the french constitution or the preamble of the human rights declaration or the other 2 documents that have equivalent weight to the french constitution); i think instead they’ll probably punt and say it’s not their decision to make, but representatives elected by the people. i would love to be wrong.

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