FRANCE:When the history of gay rights in France is written, Stéphane Charpin and Bertrand Charpentier may come to represent something akin to Rosa Parks in the US civil rights movement.
But at the moment, it's not going well for the country's first married homosexual couple. On February 20th, the Bordeaux appeals court convicted them of forging cheques, defrauding the welfare agency and taking financial advantage of a woman in her 80s who let them live in her house in exchange for help with the garden.
The "bridegrooms of Bègles", whose nuptials on June 5th, 2004, polarised France for and against gay marriage, stole eight cheques from Mathilde Bacquey to pay for their bespoke wedding suits and the rented Rolls Royce emblazoned with the words "Just Married". They were ordered to pay Ms Bacquey €5,000 and received eight-month suspended prison sentences.
Earlier, two Bordeaux courts annulled their marriage on the grounds that it endangered public order. Their final appeal, to the Cour de Cassation, France's supreme court, was heard yesterday. Charpin and Charpentier did not attend the session, which took place in a magnificent courtroom overlooking the Seine. For nearly two hours, 25 judges ensconced in blue velvet armchairs grappled with the definition of marriage.
They will hand down their decision next Tuesday, but there is little doubt the supreme court will uphold the Bordeaux courts' annulment. "The magistrates are just not ready for same-sex marriage," said Francoise Thouin-Palat, a lawyer for Charpin and Charpentier. It was discrimination she said, predicting Europe will legalise same-sex unions.
The lawyers are already planning their appeal before the European Court of Human Rights in Strasbourg, the only recourse left. As Strasbourg has a backlog of 89,000 cases, it could take years for the case to reach court.
The same body has ruled that transsexuals have the right to recognition of their new gender, and will next week hear the case of a French lesbian who was disqualified as an adoptive mother. But the Charpin-Charpentier case could establish landmark jurisprudence on homosexual marriage in Europe.
The couple's lawyers base their case on the European Convention of Human Rights. Article 8 consecrates respect for private and family life, and forbids interference by public authorities. Article 12 says that men and women have the right to marry and found a family (but is ambiguous about gender) and article 14 notes that rights under the convention must be ensured without distinction as to sex.
Ms Thouin-Palat based her plea on the fact that the French civil code neither bans nor authorises marriage between persons of the same sex. The court rapporteur had a different interpretation: "It was so obvious (that marriage was between a man and a woman) that no one thought to include it in the civil code," he said.
Children were at the heart of the argument. "You can judge marriage without pre-judging filiation," Ms Thouin-Palat said. "There will be no domino effect on filiation. These are two distinct sections of the civil code . . . It is false that same-sex marriage would automatically lead to adoption."
Homosexuals are not abnormal, not outcasts, Ms Thouin-Palat continued. "They are a social norm, recognised as such." Belgium, Holland, Spain, South Africa, Canada, Australia and two US states have legalised gay marriage, she said.
"65 per cent of French people approve of letting people of the same sex marry . . . homosexuality was excluded, then tolerated, and is now accepted. Society is ready. We're not asking you for a revolution, but recognition of a fact."
Marc Domingo, the attorney general, was meant to defend the interests of French society. He set the tone at the outset by muttering about "corpses recycled as spare parts". The marriage was "an event whose symbolic and subversive import far surpassed the personal fate" of Charpin and Charpentier, he said.
The Bordeaux courts that annulled the marriage had erred by failing to explain how it endangered public order, Mr Domingo said. "Marriage has always occupied and still occupies . . . a central place among the fundamental values upon which society is based." The institution "guarantees the permanence of the genealogical principle that structures the continuation of generations". So it was about children, after all.
"The disappearance of the demand for sexual differentiation . . . would open the path to a radical upheaval of the modes of establishing filiation," he continued.
Homosexual marriage would by definition lead to homosexual parenthood because these questions shook the foundations of society, and the judiciary could not be expected to answer them. The attorney general preferred they be referred to the National Assembly.