Why French Law Rejects a Right to Gay Marriage: An Analysis of Authorities

Abstract

The debate over the definition of marriage has proceeded in strikingly different ways in the United States and Europe. While the debate in the U.S. has largely taken place in the judicial realm, the debate in Europe has largely been confined to legislative bodies. This procedural difference, however, is much less important than the differences in the substance of the discussion. This article examines French legislative and judicial authorities to highlight these differences. Thus, while the debate in the United States has generally focused on claims of equality and rights with an emphasis on treatment of adults seeking to marry. In France, by contrast, though equality claims are addressed, they have typically been analyzed with attention to the interests of children in marriage as a social institution rather than an association of adults. The article examines key cases from the Court of Cassation and Constitutional Court as well as a detailed report of a Parliamentary committee in France to flesh out the reasons these authorities for their decision to retain the legal definition of marriage as the union of a husband and wife.