French Court Ruling on Gay Marriage:
If you believe that foreign law shapes the meaning of the U.S. Constitution, then the chances that the U.S. Constitution guarantees a federal constitutional right to same-sex marriage just got a lot lower. (LvHB)
The ruling is a no-brainer, and the French courts, unlike the American ones, are wary to use contra legem interpretations. At least in cases where the media pays attention -- in the law of contracts or consumer law, they sure like to trample the principles our law is founded on.
The AP article fails to explain that the so-called "ceremony" was never meant to be legal, but was carried out by a radical, far-left mayor as a symbol. If I called up a press conference, signed a "contract" selling my kidney (say), all to make a point about organ markets, the ruling quashing my contract wouldn't be a big deal, it would just be the application of centuries-old law.
-- Law student at the University of Paris
I'm curious, why does that matter? I believe the constitutional reliance on foreign law notes the practice in other countries, not the underlying basis for the practice. Is that wrong?
(1) "Strange that the government lawyer is referred to as a "prosecutor" even though the case is what would appear to a common law lawyer to be purely civil."
The "premier avocat general" and his subordinates only work in front of the French Supreme Court (Cour de Cassation), where they represent the interest of the state. While this office is part of the ministere public (~ public prosecutor), its members do not prosecute anyone (this also holds true in criminal matters, as the proceeding in front of the Cour de Cass only determine whether to invalidate the court of appeals or not ... )
(2) Unlike US Courts, normal French Courts (including the Cour de Cass) cannot invalidate laws on the ground that they violate the constitution. There is something resembling a special constitutional court (Conseil d'Etat), but it is mostly concerned with checking the constitutionality of laws before they enter into force.
(3) As the article linked to mentioned, French law created specific civil unions for gay couples, which give them most rights married couples enjoy.
For the last two reasons I am not sure whether the French example is all that helpfull for the American constitutional law discussion ...
I'm guessing that it is probably because it was the government that challenged the legality of the said marriage. But I'm not sure about this.
The word "prosecutor" might also refer to an advocate general who speaks "on behalf of the law" before supreme courts (akin to the recently castrated "commissaire du gouvernement" at the Conseil d'Etat).
I'm not yet well versed in cassation technique so I can't really help you on that one.
<i>I'm curious, why does that matter? I believe the constitutional reliance on foreign law notes the practice in other countries, not the underlying basis for the practice. Is that wrong?</i>
I'm not sure how constitutional reliance on foreign law in the U.S. works. All I was pointing out is that the Court's decision had nothing to do with the merits of gay marriage and in fact, it was not about gay marriage at all. It was about whether a marriage act fulfilled the legal conditions set out by the Civil Code, which it clearly did not.
I believe -- but I may be wrong -- that this would be relevant to the "foreign law" debate if the Court had debated the issue of gay marriage only to decide that it should not be allowed. This is not at all what happened here.
<i>Unlike US Courts, normal French Courts (including the Cour de Cass) cannot invalidate laws on the ground that they violate the constitution. There is something resembling a special constitutional court (Conseil d'Etat), but it is mostly concerned with checking the constitutionality of laws before they enter into force. </i>
This is not very accurate.
The Conseil d'Etat cannot strike down unconstitutional laws (at least in theory) any more than the Cour de cass. The constitutional court to which you refer to is the Constitutional Council, which indeed reviews laws before they come into force. This process is called "constitutionality control" (<i>contrôle de constitutionnalité</i>) and is broadly similar to the U.S. concept of judicial review.
However, while in theory that power lies with the Constitutional Council, the Cour de cass and the Conseil d'Etat CAN indeed strike down unconstitutional laws in practice. They do this through controlling not their constitutionality but their conventionality (i.e. compatibility with international law), and since directly applicable treaties such as (esp.) the European Convention on Human Rights have content broadly similar to the bills of rights enshrined in the Constitution, striking down a law for inconventionality amounts, in practice, to striking it down for inconstutionnality.
In reality, this is (even) more complicated. The relationship between France's multiple supreme courts, constitutional law and internatinoal law is increasingly blurry and a matter of huge controversy in French legal circles.
But, and this is what's important in this case, this has NOTHING TO DO with the gay marriage ruling. The Cour de cass did not use ANY form of constitutional or conventional review to strike down the marriage act, nor did it debate the issue on the merits. It simply applied the good old Napoleonic Code from way back in the day. Period.
(1) Luckily I did just beat you regarding the Conseil Constitutionnel; stupid mistake, I admit ....(I should not eat while typing)
(2) It simply applied the good old Napoleonic Code from way back in the day. Period.
Yes but no; it also held that it was in line with European conventions; in this respect it might in fact inspire the American discussion.
See the press release of the CdeCass:
http://www.courdecassation.fr/
jurisprudence_publications_documentation_2/
actualite_jurisprudence_21/premiere_chambre_civile_568/
arrets_569/arret_no_9966.html
La Cour de cassation était saisie d’un pourvoi formé contre un arrêt ayant confirmé un jugement de première instance annulant un acte de mariage célébré entre deux personnes du même sexe.
La Cour de cassation a jugé qu’en l’état de la loi française actuelle, le mariage n’est possible qu’entre un homme et une femme. Elle a également examiné la compatibilité de cette norme avec la Convention européenne de sauvegarde des droits de l’homme et des libertés fondamentales pour en déduire que la loi française n’en méconnaît pas les dispositions et notamment celles de l’article 8 garantissant le droit au respect de la vie privée et familiale, celles de l’article 12 consacrant le droit au mariage pour l’homme et la femme et celles de l’article 14 prohibant les discriminations notamment fondées sur le sexe. Elle a précisé également que la loi française n’est pas contraire à la Charte des droits fondamentaux de l’Union européenne, celle-ci n’ayant pas, en toute hypothèse, force obligatoire en France.
Dès lors que la loi française, telle qu’interprétée par la Cour de cassation, n’était pas contraire à la Convention européenne précitée et ne pouvait dont être écartée, la solution retenue s’imposait. Seule l’adoption d’une loi nouvelle par la représentation nationale pourrait faire évoluer cet état de droit.
Préalablement, la Cour a écarté la critique, faite à la décision de la cour d’appel, d’avoir jugé que le ministère public pouvait agir contre la célébration de ce mariage. La Cour a en effet décidé que le fait de procéder à une telle célébration, malgré l’opposition du ministère public notifiée, permet à celui-ci de contester la validité de cette union.
Cet arrêt a été rendu sur les conclusions conformes de l’avocat général.
Bad news for finding a "constitutional" like right, but the door has been left open should the people demand it (via their legislature).
And I'm not sure that a French example -- or any other example, except for a few limited exceptions -- can ever be "helpful for the American constitutional law discussion."
Nevertheless, Justice Ginsburg (sometimes) believes that American courts should consider "the experience and good thinking foreign sources may convey" when construing our Constitution, and Justice Breyer (sometimes) believes that "[i]f here I have a human being called a judge in a different country dealing with a similar problem, why don't I read what he says if it's similar enough? Maybe I'll learn something," so if they don't pay heed to this, then I guess we're back to Justice Scalia's question: what is the criterion for when foreign law applies and when it doesn't?
At risk of abusing Orin's hospitality, I have a paper on this subject, The Misguided Search for “the One Law - and the Ongoing Struggle to Articulate it Correctly”, if anyone's interested.
Good point re: the Convention on Human Rights. However in that respect, I would wager that the Court was only batting away arguments by the petitioners (in that regard, the bit about the EU Charter is hilarious) and not, substantially speaking, considering the issue of gay marriage v. the rights set out in the Convention on the merits.
SimonD:
Thanks a lot for the links re: foreign law in U.S. constl law. I'm only familiar with the Scalia position on foreign law, which seems to make perfect sense to me, but I'm always eager to be challenged on my views.
Still: let me recommend two that will challenge your view: Melissa Waters, Mediating Norms and Identity: The Role of Transnational Judicial Dialogue in Creating and Enforcing International Law, 93 Geo. L.J. 487 (2005) (available at SSRN) and Mark Rahdert, Comparative Constitutional Advocay, 56 Am. U. L. Rev. 553 (2007) (available at SSRN). If you're looking for different views on the subject, those are both very good (albeit, IMO, wrong) and very readable.
However in that respect, I would wager that the Court was only batting away arguments by the petitioners (in that regard, the bit about the EU Charter is hilarious) and not, substantially speaking, considering the issue of gay marriage v. the rights set out in the Convention on the merits.
Maybe. But we should keep in mind 2 things:
(1)While the EU charter of course does not apply as such, parts of it could be seen as codifying general principles of European constitutional law - as such, the ECJ might be tempted to apply it despite the non-ratification of the EU constitution ...
(2) The case only covers the question, whether gays have the right to use the legal institute of marriage as it exists in the code civil. There are 2 more important and interesting questions which the case does not have to tackle:
(a) to what degree a civil union must be treated like a marriage and
(b) whether the denial of the right to marry would be in line with the European conventions if there was no civil union available.
Scalia argues that foreign law shouldn't be used to provide content for provisions of the American constitution. For example, "cruel and unusual" and "equal protection" are moral understandings written into the Constitution, and it isn't helpful to ask what people in Western Europe think is "cruel and unusual" or what kinds of discrimination they find illegitimate. Use of foreign law in this way is (1) prone to abuse through selectivity, (2) prone to misuse by ignoring context (such as whether the laws in foreign countries were democratically enacted), and (3) pernicious in that the scope of the Constitution should not be altered by reference to fads in Europe.
Breyer never really confronts this head-on, and his arguments are essentially that he uses foreign law the same way a judge might legitimately use a law review article or an American judicial opinion that, of course, isn't binding on the Supreme Court. Look at the analysis and see if it's persuasive. If Judge Posner has a persuasive opinion, the Supreme Court will cite it, but that doesn't mean that they've handed control over the judicial branch to a 3-judge panel of the Seventh Circuit. Similarly, if a judge in Brazil has a perceptive discussion of pension law that might be helpful, there's nothing wrong with taking advantage of that assistance.
The problem with Justice Breyer's response is that it's less than honest about what he (and others on the Supreme Court) have actually done with foreign law in recent years. To provide a reasoned response to Scalia et al., he needs to explain why Scalia is wrong as a matter of fact when he says that some Justices are using foreign law to change the scope of the Constitution.
Well, that's one problem with Breyer's response, but it isn't the only one. The problem that I keep coming back to - which no transnationalist has yet tackled convincingly - is this: suppose I stiuplate that anything that's persuasive should be fair game. And suppose you have a case like Knight v. Florida, and you think that it's, quote-unquote, "persuasive" that the Privy Council and the Supreme Court of Zimbabwe have said that it's unacceptable to keep a man on death row for years. Okay, fine. Put it in the opinion. But what am I supposed to be persuaded of?
This is the logical jump that I highlight (or one of the logical jumps that I hope to highlight) in The One Law: even assuming that courts in another country have decided an issue that at first glance looks similar, what are we supposed to be persuaded of? Why is it relevant that a judge in Ghana thinks that a provision of Ghanese Constitution means X, Y or Z? I mean, conceivably, if the Ghanese court issued an opinion that declared that the provision of the Ghanese Constitution at issue turned on how the Anglo-American Common Law understood a given issue in 1791 (what are the chances, right - but it could happen), then maybe that would be citable in an opinion by our Supreme Court in a case that also turned on how the Anglo-American Common Law understood the same issue in 1791. Then you'd have a situation like Moskal. That would arguably be one of the exceptions. But that isn't the kind of citation that's at issue here.
My point going back, gee, I guess nearly two years now is this: you can't disaggregate the debate about foreign law from the debate about the role of judges in our system of government. If you're an instrumentalist, and you believe that judges should say what the law ought to be, citing foreign law is absolutely appropriate. Because if that's what you think you're doing, then what you're looking for is the right answer, for the best answer, in which case, it's a wise declaration of personal humility to admit that looking at the same issue through the eyes of foreigners might help you get past your own biases and prejudices to find "the right answer," to find the universal, platonic "best" answer.
But I'm not an instrumentalist. Pace Professor Solum, my name is Simon Dodd, and I, too, am a legal formalist. If you're a formalist -- if you believe that when Marshall said that it's "the province and duty of the judicial department to say what the law is," he understood that to expound is not to manufacture, and that judges should discover the law not make it anew (this is rephrasing a point I previously made here, and I'm working on a paper discussing originalism as declaratory theory, but what I mean is, if you believe the Blackstonian conception that the judge's saying what the law is, is not "to pronounce a new law, but to maintain and expound the old one") -- if you believe all that, if that's what you believe judges should be doing, then it's hard to see what foreign law could possibly be persuasive of.
Foreign law is just another front in formalism vs. instrumenalism, originalism vs. living constitutionalism. Nothing more, nothing less.
Not really, all it does is show that there are some things even the French won’t condone. ;)
Not that there's anything wrong with that.
1. The Court mentioned international law only in response to arguments made by the petitioners.
2. There was a public prosecutor because the state was the party challenging the legality of the marriage (strictly speaking, a putative marriage).
Positroll:
(1)While the EU charter of course does not apply as such, parts of it could be seen as codifying general principles of European constitutional law - as such, the ECJ might be tempted to apply it despite the non-ratification of the EU constitution ...
This is an extremely interesting point. Right now that issue is totally moot, however, until the ECJ does decide to use the charter.