French Constitutional Council Validates the Same-Sex Marriage Bill

Gay marriage rally. Paris, December 16.  Photo: Pauline Proffit for La Jeune Politique.

Gay marriage rally. Paris, December 16.
Photo: Pauline Proffit for La Jeune Politique.

May 17 was the International Day Against Homophobia (IDAHO), and also the day the French Constitutional Council approved the same-sex marriage bill that will give same-sex couples the right to marry and adopt children. On Friday, May 17, in the late afternoon, the “wise-men” of the Council released a statement, declaring that “the articles (…) of the law opening marriage to same-sex couples are in accordance with the Constitution.”

To support its decision, the Council indicated that this specific matter was not under its jurisdiction. According to the official declaration, despite the fact that laws had until now “considered marriage as the union of a man and a woman, this rule does not concern fundamental rights or freedoms, nor national sovereignty, nor the organization of public powers” and thus “cannot be a fundamental principle”.

For the Council, it was certainly a way to remind the opposition to the bill that this kind of reform remained a product of the “choice of the lawmakers” and that it was part of their prerogatives. This decision is entirely consistent with a previous statement, made on January 28, 2011, in which the Council, consulted about the potential inequality between citizens that the impossibility of same-sex marriage created, declared that “it is not the place of the Constitutional Council to substitute its appreciation for that of the legislator”.

At that point, the Council was very careful. It refused to declare that the previous law that limited marriage to heterosexual couples was in contradiction to the Constitution. Instead, it affirmed that “the principle of equality is not contradictory to the fact that the legislator deals differently with different issues.”

However, on its website, the Parti socialiste (PS) asserted that it was “a victory for the Republic of equality. We all think about all the families and their children who will enjoy the protection of the republican law”. Among the opponents, one of their main leaders, Christine Boutin, declared on Twitter that “if there are no reservations, this is once more a political and opportunist recommendation rather than a legal one.”

Nevertheless, the Council did express some concerns regarding adoption, which was at the core of the debate. Using a vocabulary quite similar to that of the opponents to the bill, it did not question the right to adopt for same-sex couples, but highlighted that the Constitution protected children and their interests first, and that no “right to have a child” could ever become an established principle.

After the announcement, all attention was quickly focused on President François Hollande, with questions regarding when he would decide to promulgate the law. The main question was: will he chose to do it before the next demonstration by opponents of the bill, on May 26? On the other side, will these opponents keep fighting the law or just accept the decision as unchangeable?

Only a couple hours after the Council released its recommendation, Hollande announced that he would promulgate it the following day, on May 18, perhaps in order to avoid further conflict. Many blame the bill for splitting French society into two parts, while Hollande had pledged to reunite his society when he was elected. Indeed, Christiane Taubira, the Minister of Justice who defended the bill in the Assembly, praised a “decision in favor of appeasement and wisdom.” Meanwhile, the association SOS-Homophobia announced on May 14 that the number of testimonies regarding homophobic behavior had increased in France by 27% in 2012.


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