I had the following blog conversation with “Michael,” in response to Hadley Arkes’ essay, “Judge Walker and the Language of the Law,” in The Catholic Thing, August 17, 2010:
Jean Carbonnier, the great French jurist and author of the leading commentary on the Code Civil, asked, “What is the state’s interest in marriage? Why does marriage exist, as a legal institution?”
In order to answer this question, he examined the Code itself and how it deals with cohabitation, PACS (civil unions, same-sex or opposite-sex) and marriage respectively.
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.”]
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 and no-one has been able to suggest an alternative reading of the texts themselves.
This suggests that legal concept of marriage is, in its nature, gender-specific and, also, that it is solely concerned with the status of children and their parents.
Doughlas Remy responds:
Jean Carbonnier’s understanding of marriage under the French Code Civil is just one more example of how protean the concept of marriage has been across cultures and throughout history. Proponents of same-sex marriage (SSM) are often accused of trying to change the definition of marriage, but there has in fact been little agreement about what that definition is. Where Carbonnier’s distillation emphasizes paternity, earlier conceptions might have stressed property. Today, ten countries define marriage as a legally recognized union between two consenting adults, regardless of their gender or their intentions about procreation. The liberal democracies seem to be moving toward an expanded idea of the institution—one that encourages loving commitment between two people for whatever purposes are meaningful to them. Young people may marry because they want to spend their lives together and conceive children. People past child-bearing age may marry for companionship, for security in their twilight years, or simply because they are madly and passionately in love with each other and want recognition of their bond. It is not the business of the state to tell anyone that their reasons for marriage are unacceptable unless some harm might result from the marriage.
The idea that marriage is uniquely for procreation is basically a religious one, as is the idea that only oppositely gendered people should marry. Those who have such views are free to marry accordingly. However, our Constitution’s disestablishment clause protects the rest of us from having that idea imposed on us. Judge Walker understood that the more restrictive definition of marriage enshrined in the California constitution by Prop 8 was based in religious belief, and he correctly determined that the state of California had no compelling interest in upholding it. Never mind that voters had approved it. It violated the equal protection and due process clauses of the 14th Amendment to the US Constitution.
In the national debate we’re having about SSM, the view that procreation is the telos of marriage will never have legs. Marriage has already gone way beyond that point, and there’s no going back. Millions of Americans marry for companionship, for love, for security, for the raising of adopted or step children, and for many combinations of the above. The definition of marriage has already changed so much that Carbonnier’s more restrictive view of it would probably seem pretty radical to most Americans.
Why, indeed, must there be only one model of marriage? We live in a pluralistic society whose members have an astonishing variety of needs, goals, tastes, aptitudes, and interests. The “one-size-fits-all” approach can only result in making marriage less attractive. If we believe that joy, health, stability, and security are preferable to loneliness, social insecurity, and promiscuity, then let’s support any form of marriage that offers these goods.
Thank you for your observations. Carbonnier’s analysis had to address the differences between the two legal régimes of marriage on the one hand and civil unions (PACS) on the other (as well as unregulated cohabitation) and to extract a principle from them.
He argues, very convincingly, in my submission, that the presumption of filiation is the cardinal difference and all others can be subsumed under this principle. Does this mean that procreation is the end or purpose of marriage? No, it simply means 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 for an orderly succession to property. To date, no better, simpler and 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 are either the result of religious convictions or an attempt to import them into his interpretation of the Code.
Doughlas Remy responds:
If all that is meant by “presumption of paternity” is that the state has a “clear interest in the filiation of children being clear, certain, and incontestable,” then neither I nor any other advocate of same-sex marriage should have any issue with it. We can all agree that the state has a role to play in assuring that children are properly cared for and that they benefit from an orderly succession to property. But homosexual couples may have children by adoption, by previous marriage, by artificial insemination, or by use of surrogates, so I fail to see how Carbonnier’s concept of marriage is therefore gender-specific, as you claimed in your earlier comment.
The only couples that Carbonnier’s scheme would appear to exclude are ones that have either no possibility or no intention of having children. But these couples also need protection of the state in matters of property distribution where there is a separation or a death. Does Carbonnier think the state has no role to play in such matters, or does he simply create a special category for these couples (e.g., “civil unions”)? Is that is so, then it is for the people of France to decide if they like the nomenclature. I don’t think it would be very acceptable in this country, whether because we are more egalitarian or because we just never cared for unnecessary distinctions.
So far, I don’t see anything in Carbonnier’s analysis that should preclude the state’s treating a same-sex union exactly the same as an opposite-sex one. What is the difference, other than the gender pairings of the couples? And what is the state’s compelling interest in regulating that? Should only the pairing that has the best record of raising children be allowed to marry? Well, then only lesbians will qualify, and the opposite-sex couples may have to settle for something like “civil unions.”
I think what Judge Walker’s opinion did was to strip away all the pretense that there is any rational basis for the ban on same-sex marriage. What it all comes down to is prejudice, privilege, and fear of change.
[Michael answers my question about Carbonnier's view of the state's role where couples have no possibility or no intention of having children.]
Carbonnier is proposing nothing. He is analyzing the situation, as it exists. Civil unions (PACS) already exist and are available to all couples, whether of the same or of different sexes. He is pointing out what is unique to and distinctive of marriage, in contrast to PACS and unregulated cohabitation. This he finds in the «présomption de paternité.»
Now, there is no place for this presumption between parties of the same sex, rendering marriage gender-specific, in a way that PACS are not.
Once (legal) filiation is constituted, the rights and duties of parents and children are identical in all cases, so there is nothing distinctive about marriage in this regard.
Paulus was, I suppose, a closet Christian (or Jew?) when he wrote, “Pater est is quem iustae nuptiae demonstrant,” a maxim that has found its way into every civil code in Europe.