Library of Congress

Law Library of Congress

The Library of Congress > Law Library > News & Events > Global Legal Monitor

France: Prohibition of Homosexual Marriages Found Constitutional

(Feb. 2, 2011) On January 28, 2011, the French Constitutional Council found that the French Civil Code's provisions providing that marriage must be between a man and a woman are not in violation of the Constitution (D├ęcision 2010-92 QPC du 28 janvier 2011, Conseil Constitutionnel website (Jan. 28, 2011), http://www.conseil-constitutionnel.fr/conseil-constitutionnel/francais/l
es-decisions/acces-par-date/decisions-depuis-1959/2011/2010-92-qpc/d
ecision-n-2010-92-qpc-du-28-janvier-2011.52612.html
). Plantiffs Corine C. and Sophie H. had argued that articles 75 and 144 of the Civil Code, which indirectly ban homosexual marriages, were contrary to article 66 of the Constitution, to the freedom of marriage, to the right to lead a normal family life, and to the principle of equality before the law (Civil Code, LEGIFRANCE.GOUV.FR, http://www.legifrance.gouv.fr [File: Les Codes en vigueur] (last visited Jan. 31, 2011)).

The Council stated that article 66 prohibits arbitrary detention and therefore is not applicable to marriage. It further found that freedom of marriage does not prohibit the legislator from setting forth conditions for marriage, as long as these conditions are not contrary to other constitutional principles, including the right to lead a normal family life and the equality principle. According to the Council, although the right to lead a normal family life is recognized by the Constitution, this right does not imply that same-sex couples can marry. These couples are free to live together or to enter into a legal partnership (PACS). As far the principle of equality before the law is concerned, the Council estimated that the difference in circumstances between same-sex couples and couples comprising a man and a woman could justify a difference of treatment. Finally, the Council stated that its role is to rule on the constitutionality of existing laws and not to substitute itself for the legislature. (D├ęcision 2010-92 QPC du 28 janvier 2011, supra.)