Marriage equality: French Constitutional Court rejects mayors' conscience claim

Conseil Constitutionnel

The French Conseil Constitutionnel (constitutional court) has held that mayors and civil registrars who oppose same-sex marriage on grounds of conscience or religious belief  have no constitutional right to be exempted from the duty to officiate marriages between persons of the same sex. The decision (in French only) is available here.

The case was taken by six French mayors following the coming into force of France’s equal-marriage law earlier this year. This reform was a part of the Socialist Party manifesto but met with a broad campaign of resistance from the right wing; with large demonstrations having taken place earlier this year.

The mayors relied primarily on the constitutional principle of liberty of conscience s as protected in Article 10 of the 1789 Declaration of the Rights of Man and the Citizen, which has legal force under the 1958 Constitution. They also invoked the right not to be prejudiced in one’s employment by virtue of one’s beliefs, a principle protected in the preamble to the Constitution of 1946, which is still a source of constitutional rights (despite the Constitution of 1946 no longer itself being in force!), as well as a general principle of pluralism.

While the ruling is typically short and terse, effectively it dismisses the idea that freedom of conscience entitles a public servant to be exempted from performing functions which are inconsistent with their religious or moral beliefs. The decision points to the fact that registrars “perform their functions in the name of the State” [para 8, my translation]. It also states:

“In refusing to permit civil registrars to use their disagreement with the provisions of the [marriage equality law] to excuse themselves from performing functions attributed to them by the law for the purpose of officiating marriages, the legislature intended to ensure the application of the law in the area of marriage and thus to guarantee the neutrality of public service in the context of civil registration” [para 10, my translation, emphasis supplied]

This reference to the “neutrality of public service” must be seen in light of the broader principle of laïcité, or constitutional secularism, as a principle of French public law. Compared to other jurisdictions, public servants generally are under a stronger “obligation of neutrality” which precludes, for example, the use of religious symbols or religious dress in public employment. The constitutional court decision, when read in context, suggests that there is no requirement that a refusal to accommodate religious beliefs in the public-service context must be subject to any special justification or any equivalent of a proportionality analysis.

This decision can be compared with the recent judgment of the European Court of Human Rights in Ladele and MacFarlane v UK. Ladele, a Christian civil registrar, had been dismissed from her position at Islington Borough Council as she refused to officiate civil partnerships. The Strasbourg court held that the refusal to exempt Ladele based on her religious objection to same-sex unions was a proportionate restriction on her right to manifest her religious beliefs under Article 9 of the European Convention on Human Rights. In particular, the judgment referred to the respondent State’s margin of appreciation and its interest in upholding the “rights and freedoms of others” in the terms of the proviso to Article 9.

In Ireland, a similar debate took place based surrounding the Civil Partnership Act 2010. The then Government refused to exempt civil registrars from the the duty to officiate civil partnership ceremonies. However, the Catholic bishops argued that the constitutional right to freedom of religion required such “conscience” claims to be accommodated. This week’s French ruling further illustrates a broader tendency across Europe to reject the relevance of religious freedom in the context of public service duty.

As Le Monde notes, this decision finally puts an end to a “campaign of resistance” to the marriage-equality law by right-wing mayors and local politicians.

Marriage equality: French Constitutional Court rejects mayors' conscience claim

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