France’s highest court, the Constitutional Council, has rejected the idea that gay marriage is a constitutional or human right.
This follows on the heels of the a similar decision by the European Court of Human Rights that gay marriage is not a human right. All in all, good news for those of us who depend on winning Justice Anthony Kennedy’s vote.
This is good news, but Kennedy will either troll around harder to find, as Scalia says, a "friend in the crowd" to justify it, or will say that "Sometimes, the US needs to be a leader."
Reply to this commentLinkReport AbuseUnfortunately, enough domestic changes have occurred -- aka one, (DADT repeal), as to give kennedy all the fig-leaf-like cover he needs.
So now the FRENCH are more morally conservation than the USA?!
Reply to this commentLinkReport AbuseSorry - that should have read "morally conservative"
Reply to this commentLinkReport AbuseI wonder if all the American celebrities who fled to France to escape America's Puritanism (I'm talking to you Johnny Depp), will now seek "asylum" elsewhere.
Reply to this commentLinkReport AbuseSomeone needs to tell Breyer about this emerging international judicial consensus--you know, since he thinks this is supposed to be such a controlling factor in our domestic jurisprudence.
Reply to this commentLinkReport AbuseHmmm, this can't be good news for those on SCOTUS enamored with citing foreign law in their decisions. With two important courts in post-Christian Europe now opining that gay marriage is neither a constitutional nor a "human" right, guys like Anthony "Golden Boy" Kennedy may be coming to grips with the fact that they've legally boxed themselves into a corner.
Reply to this commentLinkReport AbuseI laughed when I read, "All in all, good news for those of us who depend on winning Justice Anthony Kennedy’s vote." Then I cried.
@Scott Wilson on Johnny Depp reference: LOL
Reply to this commentLinkReport AbuseThat Kennedy line made me laugh. Then, it made me cry. Unfortunately, I think SeanB is right. It reminds me of Scalia's line when he concurred in a denial of rehearing Kennedy v. Louisiana (a.k.a., death penalty for child rapists) that, "...the views of the American people on the death penalty for child rape were... irrelevant to the majority’s decision in this case."
Reply to this commentLinkReport Abuse"So now the FRENCH are more morally conservation than the USA?!"
Umm, what makes you think that? Has our supreme court declared gay marriage a human right? I must have missed that.
Reply to this commentLinkReport Abuse@Derb Fan Girl
Reply to this commentLinkReport AbuseSorry I stepped on your line. It wasn't there when I started posting.
Libs on SCOTUS only care about or cite foreign law when it supports their policy preferences -- otherwise it is ignored. They cherry pick, plain and simple. Which was exactly the point Scalia made about the error of using foreign law to interpret U.S. law.
Reply to this commentLinkReport AbuseThe French Court did not weigh on whether gay marriage is a "human right" at all. "It noted that its job is to simply rule on whether a measure abides by the rights and freedoms guaranteed by the French Constitution." This is vastly different. The court left it to the legislation to produce a bill which allows gay marriage which would put it before the French voters.
Also per the BBC, "The TNS Sofres survey showed 58% of French people approve while 35% oppose gay marriage."
Reply to this commentLinkReport AbuseFor a strong, secular case against "gay marriage" and in favor of traditional marriage, see "What is Marriage?", recently published in the Harvard Journal of Law and Public Policy.
It's available for free here:
External Link
You can obtain the free PDF by clicking "One Click Download".
Other good writing on the topic here:
External Link
Reply to this commentLinkReport AbuseI for one would LOVE to see a Scalia opinion on this that sarcastically referenced these rulings. Sadly, that would only happen in a dissent.
I always hope that one of his opinions will point out how the references to laws of other jurisdictions all selectively ignore inconvenient ones. Like death penalty cases that ignore the Middle East, China and South East Asia. Over 1/2 the world population gets ignore in those calls to the 'global consensus'.
Reply to this commentLinkReport AbuseThe French aren't more morally conservative than we are, but they apparently can read better than the San Francisco District Court Judge whats-his-name.
Reply to this commentLinkReport AbuseIsn't it charming that on the day that a Ugandan "priest" desecrates the memory of David Kato at his funeral, this triumphant whooping by dear Maggie over keeping the gays in their place is all that the NRO Corner has to report on the "homosexual front".
Reply to this commentLinkReport AbuseIt's a pretty sad commentary when the judiciaries of California, Massachusetts, Iowa, Vermont, et al are to the left of even those of the EU and France.
Reply to this commentLinkReport AbuseSeanB, Both your comments are spot-on correct.
Reply to this commentLinkReport AbuseIt really isn't that the French are more morally conservative - They have had PACS (Civil Unions) for same-sex and opposite-sex couples since 1999.
In fact, this is what has forced French jurists and courts to see what is different about marriage, as a public institution, as everyone agrees that “Mandatory civil marriage, makes the institution a pillar of the secular Republic, standing clear of the religious sacrament”
Now the Code Civil contains no formal definition of marriage, so they have fastened on Article 312 – “The child conceived or born during the marriage has the husband for father,” as a functional definition.
This led the Court of Appeal in the notorious Bègles case to say that “Clearly, same-sex couples whom nature had not made potentially fertile are consequently not concerned by the institution of marriage.”
The author of the quasi-official commentary on the Code Civil, Carbonnier, had already written, “The heart of marriage is not the couple, but the presumption of paternity.”
The French have always been remarkably unsentimental, when it comes to marriage. The Code of 1804 (the Code Napolèon) was written for small peasant proprietors.
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