The same-sex marriage ruling of the Conseil Constitutionnel: a translation

Last Friday, the French constitutional court handed down a judgment rejecting a challenge to the constitutionality of laws limiting marriage to persons of the opposite sex. This restriction was challenged as incompatible with the right to a “normal family life” contained in the preamble to the Constitution of 1946, and the principle of equality contained in the 1789 Declaration of the Rights of Man and the Citizen (both of these sources still have constitutional force). The applicants were denied their application to marry on the basis of references to “husband and wife” and “man and woman” in the Civil Code, which regulates the conditions of marriage. The essence of the judgment was that the regulation of the scope of the right to marry fell within the purview of the legislature, while the right to a “normal family life” did not imply the right to marry. The distinction between heterosexual and homosexual couples was held to be a legitimate one from the standpoint of the equality principle.

Below I have translated this quite brief ruling (please bear in mind that I am not a specialised legal translator. Also, official English translations of a small cross-sample of past rulings of the Conseil Constitutionnel are provided here).

Decision no. 2010-92, January 28, 2011

Ms C. Corrine and another (prohibition on marriage between persons of the same sex)


Having regard to the Constitution;

Having regard to the Civil Code;

Having regard to ruling 05-16627 of the Court of Cassation, March 13, 2007;

Having regard to the regulation of February 4, 2010 concerning the procedure to be followed before the Conseil Constitutionnel for a “priority reference for constitutionality”;

Having regard to the submissions of the Prime Minister, recorded on December 8, 2010;

Having regard to the submissions of Emmanuel Ludot, counsel for the applicants, recorded on December 14, 2010;

Having regard to the interventions of the Associations “SOS Homophobie” and “Gay and Lesbian Parents and Future Parents”, recorded on December 14, 2010;

Having regard to the associated documents;

With Ms Ludot for the applicants, Ms Mécary for the intervening associations, and Mr Girardot for the Prime Minister, having been heard in public on January 18, 2011;

The rapporteur having been heard;

1. Considering that by the terms of Article 75 of the Civil Code: “On the day designated by the parties, the registry office official … will read to the prospective spouses Articles 12, 213 (paras. 1 and 2), 214 (para 1) and 215 (para 1) of this Code. Article 37.1 will also be read. However, in cases of grave impediment, the procurer of the Republic at the place of marriage may require the registrar to attend the domicile or home of one of the parties in order to officiate. In the case of an imminent risk of death of one of the parties, the registrar may officiate at one of their homes prior to any authorisation by the procurer in the minimal delay, announcing the necessity of officiating outside of the civil registry. This will be noted in the marriage deed.

The registrar will question the prospective spouses, and if they are minors, their ascendants present at the ceremony, whether they have concluded a marriage contract, and if so, the date of the contract and the name and address of the notary with whom it has been deposed …

He will receive from each party, in sequence, a declaration that they take each other for man and wife; he will pronounce, in the name of the law, that they are united in marriage, and produce a deed on-site.”

2. Considering that in Article 144 of the same Code: “A man and a woman may not marry before the age of 18”;

3. Considering that this prioritised reference for constitutionality pertains to the final paragraph of Article 75 of the Civil Code as well as Article 144; that these provisions must be seen within a number of legislative provisions from which it results, as the Court of Cassation recalled in its ruling of March 13, 2007, that “under French law, marriage is a union of one man and one woman”;

4. Considering that, according to the applicants, the prohibition on marriage between persons of the same sex, in the absence of any faculty of judicial derogation therefrom, violates Article 66 of the Constitution and the freedom to marry, and that the intervening associations contend, moreover, that this fails to account for the right to a normal family life and for equality before the law;

5. Considering that in the terms of Article 34 of the Constitution, legislation shall determine “the status and capacity of persons, the marriage regime, succession and gifts”; that it is at all times permissible for the Legislature, acting in its domain of competence, to adopt new provisions through which it is entitled to consider the modification of existing texts, or their substitution by others should the need arise, insofar as, in the exercise of this power, it does not deny any constitutional requirements; that Article 61-1 of the Constitution, following Article 60, does not confer upon the Constitutional Court any general competence of evaluation or of appraisal of the same nature as that accorded to the Parliament; that this Article gives it only the competence to determine the conformity of legislation with the rights and liberties guaranteed by the Constitution;

6. Considering, first, that Article 66 of the Constitution prohibits arbitrary detention and entrusts to judicial authority, within the conditions set out by legislation, the protection of individual liberties; that the freedom of marriage, as a component of personal freedom, derives from Articles 2 and 4 of the Declaration of the Rights of Man and of the Citizen of 1789; that the contested provisions do not affect this personal liberty; that therefore, the grievance claimed in relation to the violation of Article 66 of the Constitution is inapplicable;

7. Considering, second, that freedom of marriage does not restrain the competence that the Legislature draws from Article 34 of the Constitution, to determine the conditions of marriage insofar as, in the exercise of this competence, it does not deny any constitutional requirements;

8. Considering, on the one hand, that the right to live a normal family life derives from the 10th paragraph of the Preamble to the Constitution of 1946 which provides: “The Nation guarantees to the individual and the Family the conditions necessary to their development”; that the final paragraph of Article 75 as well as Article 144 of the Civil Code present no obstacle to the freedom of same-sex couples to live in cohabitation under the conditions defined by Article 515-8 of the Code, or from benefiting from the legal framework of the Civil Pact of Solidarity provided for in Article 515 of the Code; that the right to live a normal family life does not imply the right to marry for couples of the same sex; that, consequently, the impugned provisions do not undermine the right to live a normal family life;

9. Considering, on the other hand, that Article 6 of the 1789 Declaration provides that legislation “must be the same for all, whether it protects, or punishes”; that the principle of equality neither prevents the Legislator from regulating different circumstances in different ways, nor that it may derogate from the equality principle in the general interest, provided that, in either case, the differential treatment which results is directly related to the object of the law that establishes it; that in maintaining the principle according to which marriage is the union of one man and one woman, the Legislature has, in the exercise of the competence accorded to it by Article 34 of the Constitution, considered that the difference in situation of same-sex and opposite-sex couples may justify differential treatment in relation to the provisions of Family law; that it is not within the remit of the Constitutional Court to substitute its own discernment for that of the Legislature in relation to the treatment of this difference of situation; that consequently, the grievance grounded in Article 6 of the 1789 Declaration must be disregarded;

10. Considering that it results from the above that the grievance grounded in the freedom to marry must be rejected;

11. Considering that the impugned provisions violate no right or freedom recognised by the Constitution;

It is decided:

Article 1: The final paragraph of Article 75 as well as Article 144 of the Code Civil are compatible with the Constitution;

Article 2: This decision will be published in the Official Journal of the French Republic in accordance with Article 23-11 of the aforementioned ordinance of November 7, 1958

The same-sex marriage ruling of the Conseil Constitutionnel: a translation

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