France Constitutional Council Decision on Marriage
Posted on | February 15, 2011 by Roger Kiska, J.D. |
For those interested readers, I duplicate below in English the substantive portion of the recent decision by France’s Constitutional Council upholding marriage as between one man and one woman:
6. Whereas, first, Article 66 of the Constitution prohibits arbitrary detention and entrusts to the judicial authority, as provided by law, the protection of individual liberty; the freedom to marry, a component of personal freedom, arises from Articles 2 and 4 of the 1789 Déclaration des droits de l’homme et du citoyen (Declaration of the Rights of Man and of the Citizen); the challenged provisions do not affect personal liberty, and therefore, the complaint of violation of Article 66 of the Constitution is irrelevant;
7. Whereas, second, the freedom to marry does not restrict the legislature’s jurisdiction under Article 34 of the Constitution to establish conditions for marriage so long as they are not contrary to other constitutional principles;
8. Whereas, on one hand, the right to lead a normal family life is founded in the tenth paragraph of the Preamble to the Constitution of 1946, which provides: “The Nation shall provide the individual and the family with the conditions necessary for their development”; the last paragraph of Article 75 and Article 144 of the Civil Code do not preclude the freedom of same-sex couples to cohabit under the conditions defined by Article 515-8 of the Code or to benefit from the legal framework of a civil union (PACS) governed by Articles 515-1 et seq.; the right to lead a normal family life does not necessitate a right to same-sex marriage, and consequently, the challenged provisions do not implicate the right to lead a normal family life;
9. Whereas, on the other hand, Article 6 of the 1789 Declaration states that the law “must be the same for everyone, whether it protects or punishes”; the principle of equality precludes neither that the legislature regulate differently in different situations nor that he depart from equality in serving the greater good, provided that in either case the resultant difference in treatment be directly related to the state interest; by maintaining the principle that marriage is the union of one man and one woman, the legislature, in exercising the jurisdiction granted it in Article 34 of the Constitution, considers that the difference in situation of same-sex couples and couples composed of a man and a woman can justify different treatment with regard to the rules of family law; it is not for the Constitutional Court to then substitute its opinion for that of the legislature in this matter; therefore, the complaint of violation of Article 6 of the 1789 Declaration must be rejected;
10. Whereas it follows from the foregoing that the complaint of infringement of the freedom to marry must be rejected.
