How the symbolic became French: kinship and republicanism in the PACS debates.(Pacte Civil de Solidarite, same-sex marriage)

"In ordinary societies, one stipulates for oneself, for obscure and private interests, and as the sovereign master of one's own fortune. In marriage, one stipulates not only for oneself, but for the other; one pledges to become the providence of the new family to which one will give a being; one stipulates for the State, one stipulates for the general society of humankind. The public is thus always involved in questions of marriage [...]. Conjugal society does not resemble any other." (1)

--Jean-Etienne-Marie Portalis, Preliminary Discourse to the French Civil Code

In June 2004, Noel Mamere, the mayor of Begles, a small town in southwest France, decided to follow the example set by Gavin Newsom in San Francisco a few months earlier, by celebrating the first gay marriage in France. Mamere's highly mediatized resolution unleashed a polemic which, to observers on the other side of the Atlantic, appeared somewhat strange or at least puzzling. While George W. Bush was invoking God and morality to promote a constitutional amendment which would limit marriage to a man and a woman, French politicians were turning to a different set of arguments and vocabulary. Patrick Delnatte for instance, a deputy from the center-right, told the newspaper Liberation that for him, gay marriage represented an "impasse. [...] I respect the different ways of living one's sexuality, there is no question of homophobia, but the Republican marriage answers to our anthropological principles [le mariage republicain repond a nos principes anthropologiques]. Homosexuality is not a social model that allows society to continue [qui permet a la societe de perdurer]; it is contrary to the existence of sexual difference [l'alterite de sexes] which founds marriage" (Rotman). In the months following Mamere's announcement, all major French publications ran almost daily articles on gay marriage which inevitably echoed the same terminology: "Republicanism," "anthropological principles," "difference of the sexes," and (non-) "homophobia." This essay is an attempt to come to terms with the particular character of the debate over same-sex unions in France. More precisely, it seeks to understand how an elected representative, such as Delnatte, can refer in a widely circulating newspaper--in almost a single breath--to concepts of Republicanism, anthropological principles, and sexual difference, presenting these concepts as self-evident arguments against gay marriage. How is it that these terms, borrowed from the most complex philosophical and political register, have been marshaled in opposition to same-sex marriage, just like God and morality have in the United States?

Although Mamere's act of "civil disobedience" appeared to take France a bit by surprise, debates over gay unions were hardly new. In fact, France already had its own version of domestic partnership open to same-sex couples, the PACS or Pacte Civil de Solidarite, which was passed by the National Assembly, headed by leftist prime minister Lionel Jospin, in October 1999, following at least a decade of widely publicized debates. In its last phase, the PACS was designed to provide a series of legal benefits traditionally associated with marriage--such as tax breaks, housing rights, inheritance, and health insurance--to more loosely defined "couples," independent of their sexual orientation. As the law defines it, a PACS is "a contract entered into by two physical persons of legal age, of different sexes or of the same sex, to organize their common life" (Bach-Ignasse and Roussel 259). In what follows, I will briefly outline the crucial terms of the PACS debates to better orient the larger context of French political culture in which this article attempts to intervene.

Demands for civil unions in France initially came from heterosexual couples who, by the late seventies, were increasingly shying away from marriage and requesting from their local mayors certificates of "concubinage," the legal term for domestic partnership. However, it became clear throughout the eighties that same-sex couples also needed some kind of protection at the state level, as the AIDS crisis began to dramatically highlight the legal and practical problems encountered by same-sex couples, such as being deprived of hospital visitation rights or the possibility of transferring apartment leases, among others. Moreover, by the early nineties, several European countries such as Denmark, Norway, and Sweden had already devised forms of legal recognition for same-sex couples, and in 1994, the European Parliament encouraged its members to acknowledge homosexual couples on a juridical level.

Thus began the story of the PACS, which, between the first proposition of domestic partnership in 1990 to the final promulgation of the law in 1999, went through at least seven reformulations, as CUC (Contrat d'union civile), CVS (Contrat de vie sociale), CUS (Contrat d'union sociale), CUCS (Contrat d'union civile et sociale), PIC (Pacte d'interet commun), and finally, as the PACS. All of these proposals--successively debated, amended and modified by the National Assembly, the Senate, and the courts--differed in their particular definitions of "the couple," in the rights they encompassed, and in their practical modalities. One of the major points of contention, for instance, was whether civil unions should be registered in city halls (where civil marriages have been celebrated since the French Revolution), by the courts, or merely by notaries. While some argued that these civil unions should be open to any two people living together, including friends, roommates, or siblings, others suggested limiting them to sexual couples, others to same-sex couples only. Still others maintained that the new law should regulate exclusively the division of material goods without having any impact on civil rights and without affecting the civil code.

From the outset, the PACS encountered violent opposition from the Catholic Church and from most right-wing parties, who condemned it as an attack on the sanctity of marriage and as further evidence of degradation of social mores. However, political alliances on the issue did not fall along neat party lines. Instead of arguing for or against the PACS in terms of their parties' history and ideology as is usually the case, French deputies structured the debate around the question of "Republicanism." Thus, a few elected representatives on the right joined others on the left in welcoming and promoting the new law. For them, the PACS was a vehicle to fight long-standing discriminations against homosexuals and thus a guarantee of their basic Republican civil rights. Furthermore, they argued, the PACS represented a true universalizing move in the spirit of French Republicanism, which would treat homosexuals and heterosexuals as abstract individuals, exactly alike by refusing to differentiate between them. To this day, this commitment to abstraction is exemplified by the fact that the government is not allowed to collect any statistics concerning the percentage of same-sex couples among pacses. Equally surprising was the generalized ambivalence of the left, traditionally at the forefront of social issues, especially in the field of gay rights: it was, after all, Francois Mitterrand who had decriminalized homosexuality in 1982. But many socialists and communists refused to support the PACS on the basis that it was an affront to the historical universalism of the French Republic's supposed blindness to all particularities, including of course sexual orientation. For them, the PACS represented another American-inspired attempt to cater to the demands of specific groups (homosexuals) and a move towards "communitarianism," the French keyword since the 1980s for identity politics, essentialism, "ghettoization," confusion of public and private, and basically everything contrary to the universalism, abstraction, and values of the French Republic.

Apart from Republicanism, the second main axis of debate concerning the PACS turned on the problem of kinship and gay parenting. This also came as a surprise, even to the original PACS promoters themselves, since the new law was designed precisely in opposition to gay marriage--which had been the original demand of gay activist groups but which was judged too "radical" for French society--and, as such, it had been carefully crafted to avoid any potential confusions with marriage. The PACS, for instance, does not affect one's civil status, which means that as far as the State is concerned, a pacse is still considered "single." Similarly, it does not grant French citizenship, which is automatic with marriage. Most important, the new legislation purposefully omitted any mention of filiation rights. However, many PACS opponents feared that if the new law were approved, there would be little legal basis for preventing same-sex couples from adopting children or having access to medically assisted procreation. Given the particularities of French family law, these arguments were in fact well founded. Although adoption in France continues to be regulated by a 1966 law which allows married couples or single individuals over 28 to adopt, without any reference to the adoption candidate's sexual orientation, in practical terms, adoption licenses have been almost systematically denied to single gay men or to single lesbians who have refused to hide their sexual orientation. This was the case for Philippe Frette, a 37-year-old single teacher in Paris who was denied an adoption license because of his "lifestyle" ("choix de vie" was the exact term). The decision was affirmed in 1995 by France's highest administrative court of appeals, the Conseil d'Etat, and finally, in 2001, by the European Court of Human Rights, which established it as a precedent. Similarly, the 1994 French bioethics laws outlawed the practice of surrogate motherhood and explicitly restricted artificial insemination to heterosexual couples, whether married or cohabiting. If the PACS was meant to provide a legal but also a symbolic recognition of same-sex couples in the eyes of the State, its opponents maintained, how would it be possible to deny same-sex couple filiation rights without appearing overtly discriminatory? The left had won the 1997 elections on the platform of equality for all, so how could it advance a law that essentially considered homosexuals second-class citizens?

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