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France gay marriage faces constitution threat but activists upbeat

France’s parliament has passed gay marriage but there is still one final hurdle as right-wing party UMP sends the new law to the Constitutional Council
France's Constitutional Council now has to rule on same-sex marriage.
Photo by Mbzt.

The Constitutional Council due to rule on same-sex marriage in France has already indicated that politicians should decide on the issue.

That makes victory in this final hurdle against gay marriage becoming a reality very likely, LGBT advocates say.

France’s National Assembly and Senate have both passed same-sex marriage and adoption.

But under the French system, new laws can be challenged if 60 assembly members or senators send it to the Constitutional Council for review.

And as GSN previously reported the right-wing UMP has gathered enough names to do this.

That council won’t rule on whether or not they agree with the law, merely of whether it goes against the constitution.

But experts point out the council has already ruled this is not a constitutional issue but something for lawmakers to decide.

Back in 2010 a court referred a ‘preliminary enquiry on constitutionality’ to the council on gay marriage. This is a device so courts can get a pre-judgment on an issue.

Bruno Selun, secretary to the European Parliament’s Intergroup on LGBT rights, told GSN: ‘They said it was neither contrary or conforming to the constitution so it was up to the legislature to decide.’

He also points out that Jean-Louis Debré, president of the council, has already hinted in an interview that the new pro-gay legislation will pass this test.

French gay rights campaigner Joel Bedos, of International Day Against Homophobia, says opponents to marriage equality have looked for any constitutional justification they can find to challenge the law.

They have suggested it breaches the right of the child to have a father and a mother.

They have also said it infringes on the right to privacy. That’s because the law protects same-sex married partners by saying employers can’t punish them for refusing to go on work assignment to a country that criminalizes gay relations. To benefit from that someone would have to reveal their sexual orientation and they say that infringes on the right not to disclose your sexual orientation.

But – in reality – neither of those two ‘rights’ are in the constitution.

Bedos adds: ‘The only thing they could do is to say the new law contravenes a number of other laws but that would only mean the other laws have to be adapted.’

One example is articles 75 and 144 of the Civil Code that speak about marriage being between a ‘man and woman’ or ‘husband and wife’. But, as Le Monde, the leading French newspaper points out, the council does not think this means that ‘marriage between two persons of the same sex is not possible French law’.

Bedos reports: ‘The opposition [to gay marriage] says “we have these major arguments, you will be surprised about” but they have been very secretive about it.’

Both Selun and Bedos accept the law could, theoretically, be derailed on a technicality by the council.

That happened recently on a new tax for France’s super-rich, causing massive embarrassment for the government and called in to question their competence.

But Bedos points out that many gay lawyers have supported the equality move and would have checked the legislation while Selun feels the government would have been extra careful to avoid being humiliated on another key policy.

The Constitutional Council has a month to decide on the matter and clear the way for President François Hollande, who has championed the change, to sign the bill.

The French government will take a few weeks to deal with technicalities but there is still 99% confidence that the first couples will be marrying in France in mid June.

As Bedos says: ‘Friends who had scheduled their wedding for late June have not cancelled so everything is going on, the food is ordered and the DJ is booked.’

He believes the government will certainly make the timetable of having the law in place in time to celebrate it as the massive Paris Pride march on 29 June.

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