3 Comments

Michael PS
February 17th, 2012 | 1:09 pm

As to the state’s involvement in marriage, it is worth noting that it was in France that mandatory civil marriage was first introduced. This was done on 9 November 1791 and, not coincidentally, by the same Legislative Assembly that turned ten million landless peasants into heritable proprietors.

The Civil Code contained no definition of marriage, but Article 312 “The child conceived or born in marriage has the husband for father,” has been treated as a functional definition by jurists, including the three most authoritative commentators on the Civil Code, Demolombe (1804–1887), Guillouard (1845-1925) and Gaudemet (1908-2001), long before the question of same-sex marriage was agitated. Indeed, Article 312 echoes the Roman jurist, Paulus, who wrote “.pater vero is est, quem nuptiae demonstrant.” (Marriage points out the father) [Dig. 2, 4, 5; 1] It led the most recent commentator, Le doyen Carbonnier (1908–2003) to assert that “the heart of marriage is not the couple: it is the presumption of paternity.”

Note it was not procreation, but filiation, or the establishment of the juridical bond between father and child that was seen as the basis of the state’s interest in marriage

In 1998, a colloquium of 154 Professors of Civil Law, including Philippe Malaurie, Alain Sériaux, and Catherine Labrusse-Riou unanimously endorsed this interpretation of the Civil Code. This led to the introduction of civil unions (PACS) for same-sex and opposite-sex couples in the following year.

Not surprisingly, given this background, the French courts have unanimously rejected claims to SSM on equality grounds, declaring that the rule’s “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 are consequently not concerned by the institution of marriage. This was differential legal treatment because their situation was not analogous”

It is significant that, in a country so committed to the principle of laïcité as France, no one has suggested that the “doctrine” of the jurists or the “jurisprudence” of the courts are the result of religious convictions or an attempt to import them into their interpretation of the Civil Code.

Pete Spiliakos
February 17th, 2012 | 4:20 pm

So any report on the Ross Douthat thing yesterday?

JP
February 18th, 2012 | 11:56 am

The difference in between Pagan and Christian marriage is that Christian marriage is sacramental. That difference set the foundation for Western culture. The West’s treatment of women and children created an entire set of mediating institutions, laws, customs, traditions, and privleges that had far reacning consequences. Marriage created such a change in Europeans that a family in 8th Century Italy had nothing in common with his forbears 3 centuries before.

Progressives always understood this. Redefine marriage and the family and you redefine society.