A couple of
weeks ago France’s equivalent of the Supreme Court found that the country’s ban
on same-sex marriage did not violate the 
French Constitution. Vitally, it found
that the principle of equality wasn’t breached because the State is entitled to
treat different situations in different ways.
This is an
absolutely crucial point. Everyone
believes in equal treatment, but the principle of equal treatment simply means
that equivalent situations should be treated in an equivalent manner. However, if two
situations are not equivalent it makes no sense to treat them as though they are
equivalent, and it is no violation of the principle of equality to do so.
The critical part of the ruling reads as follows: “Whereas, on the other hand, Article 6
of the 1789 Declaration states that the law ‘must be the same for everyone, whether
it protects or punishes’; the principle
of equality precludes neither that the legislature regulate differently in
different situations nor that he depart from equality in serving the greater
good, provided that in either case the resultant difference in treatment be
directly related to the state interest [my italics]; by maintaining the principle that
marriage is the union of one man and one woman, the legislature, in exercising
the jurisdiction granted it in Article 34 of the Constitution, considers that
the difference in situation of same-sex couples and couples composed of a man
and a woman can justify different treatment with regard to the rules of family
law; it is not for the Constitutional Court to then substitute its opinion for
that of the legislature in this matter; therefore, the complaint of violation
of Article 6 of the 1789 Declaration must be rejected”.
The ruling allows that the legislature could someday allow
same-sex marriage if it wished, but the law as it stands is not
unconstitutional because as the French Constitutional Court found, treating
different situations in different ways is not a violation of the principle of
equality and the legislature is entitled to say that there is a relevant difference between opposite-sex and same-sex couples in respect of marriage.
Here, of course, is where arguments for and against same-sex
marriage stand or fall. Is there is a relevant difference between same-sex and
opposite-sex unions that justifies different treatment of the two? Our view,
obviously, is that there is. As we have pointed out on numerous occasions, a key difference is that only opposite sex
couples can provide a child with both a mother and a father and that this is
relevant to the interests of children. There is more to the argument than this, but that is it in a nutshell.
If this view is correct, then the principle of equality is not violated
when the marriage of a man and a woman is given favourable treatment by the State.