(cross-posted from 365gay.com)
What should we take away, if anything, from today’s unanimous decision by the French Constitutional Council holding that same-sex couples don’t have the right to marry? After dusting off my French and taking some time to read through it, I have a few thoughts.
The most general point is this: There’s not much of interest in the decision for American legal jurisprudence, even though the legal theories discussed are the same as those considered here: liberty and equality. (All that’s missing from the French motto is “fraternité”).
First, the relationship between court and legislature is quite different in France – a civil law country – than it is in common law nations like the U.S.
To oversimplify, French courts are far more deferential than are ours. While the term “activist court” is tossed around carelessly, it’s undeniably true that the American judiciary is, and has long been, far more willing to declare legislative determinations unconstitutional than have courts in civil law countries. That’s because the civil code is presumed to lay out the law clearly and comprehensively, and the court’s role is seen as more technical – the judges “simply” apply the law to the case before them.
So it’s hardly unexpected that a French court – even a constitutional court – would defer to the legislature. Indeed, the very brevity of the decision highlights the dearth of careful, considered legal analysis the court undertook. I took these points from the decision:
- Those challenging the law argued that denying them the right to marry was a restriction on their constitutionally guaranteed liberty, a liberty that includes the right to conduct a normal family life (“mener une vie familiale normale”). The court breezily dismissed this claim, noting that the couple could either cohabitate without marriage or enter into a civil union (“le pacte civile”). Any U.S. court considering the claim today would have given weight to the argument that barring people from marriage is an interference with what society — pointedly, even coercively — considers a normal family life.
- As for the equality claim, the court – again, with no analysis – declared that same-sex couples aren’t equally situated to opposite-sex couples when it comes to marriage, and that the legislature could therefore have decided to treat them differently. Again, a U.S. court would be expected to devote (too) many pages to a discussion of the “similarly situated” question, however the court ultimately came out on the issue.
- Generally, the court deemed the issue purely one of legislative line-drawing, in its way no different from age restrictions and (even) procedural requirements for marriage. The court did invite the Parliament to reconsider its line-drawing in this instance, but its invitation has no “teeth.”
Will this decision influence anyone here? I might expect the rabid right to jump on it – even though it’s from France, of all places – but we shouldn’t let them get away with it. This is really a decision with little analysis, and with no real legal analogue to the relationship between the judiciary and the legislature that exists here.
And, in a delicious irony, the conservatives on the U.S. Supreme Court can’t get any traction from it, either. After all, to quote Justice Thomas from a 2002 death penalty case: “[T]his Court’s … jurisprudence should not impose foreign moods, fads, or fashions on Americans.”
For once, I agree with him.