No-one will deny that the state has a clear interest in the filiation of children being clear, certain and incontestable.

And now we have DNA tests…

The great French jurist and author of the leading commentary on the Code Civil, le doyen Jean Carbonnier did raise the question: “What is the state’s interest in marriage? Why does marriage exist, as a legal institution What is the unique legal rôle of marriage?”

Carbonnier’s analysis had to address the differences between the two legal régimes of marriage on the one hand and civil unions (PACS) for same-sex and opposite-sex couples on the other (as well as unregulated cohabitation) and to extract a principle from them.

His conclusion: « le cœur du mariage, ce n’est pas le couple, c’est la présomption de paternité » [“The heart of marriage is not the couple, but the presumption of paternity.”] This is based on Article 312 of the Code Civil: « L’enfant conçu ou né pendant le mariage a pour père le mari.» (“The child conceived or born during the marriage has the husband for father”)

To summarise his conclusions: (1) Mandatory civil marriage, makes the institution a pillar of the secular Republic, standing clear of the religious sacrament (2) The institution of republican marriage is inconceivable, absent the idea of filiation, enshrined, not in Church dogma, but in the Civil Code (3) The sex difference is central to filiation..

In other words, the institution of marriage entails consequences with respect to filiation that the other forms of union do not. Moreover, this leading jurist could find no other significant difference at all, in the laws governing cohabitation and civil unions on the one hand and marriage on the other, that does not logically derive from this presumption and no-one, to my knowledge, has been able to suggest an alternative reading of the legal texts themselves.

The Court of Appeal in the Bègles case in 2004/5 confirmed this interpretation, finding that its “specific and non-discriminatory character was the result of the fact that nature had limited potential fertility to couples of different sexes… Clearly, same-sex couples whom nature had not made potentially fertile were consequently not concerned by the institution of marriage. This was differential legal treatment because their situation was not analogous” and that consequently, the celebration that was declared null “cannot be considered a marriage”

No-one will deny that the state has a clear interest in the filiation of children being clear, certain and incontestable. It is central to its concern for the upbringing and welfare of the child, for protecting rights and enforcing obligations between family members and to the orderly succession to property. To date, no better, simpler, less intrusive means have been found for ensuring, as far as possible, that the legal, biological and social realities of parenthood coincide. And that is no small thing.

It is significant that, in a country so committed to the principle of laïcité as France, no one has suggested that Carbonnier’s views, or those of the Court of Appeal, are either the result of religious convictions or an attempt to import them into his interpretation of the Code.

Does anyone doubt the willingness of many advocates of equality to sacrifice religious liberty?

“Many”? Sure. Most? Not so sure.

I wonder which is more destructive for society. The above, or a Manhattan Declaration “app”.

What exactly did the Manhattan Declaration “app” do anyway?