Who is Breaking with Tradition? The Legal Recognition of Same-Sex Partnership in France and the Question of Modernity

Abstract

Contrary to the manner in which it is often presented, the struggle for legal recognition of same-sex couples does not constitute a departure from the foundations of modem family law in France. The process of modernization of family law started at the end of the eighteenth century, spurred by emerging principles valorizing the autonomy of the individual and free choice with respect to individual civil status. The French Revolution of 1789, as well as the Napoleonic civil code of 1804, reimagined the institution of marriage as a contract founded on the abstract will of the respective parties, rather than as a union of the flesh established by religious sacrament. In this secular conception of marriage, which is constitutional in nature, the religious ceremony is devoid of any legal consequence, and citizens, to be legally married, must validate their union in front of a representative of the state. The current political claims of the gay and lesbian movement emphasize these same principles, albeit in a slightly more radical form.