Subject: FRANCE: Le Monde article on "contract for civil union" (Nov 1997)
From: Alan Reekie <[email-masked]>
Date: Sun, 9 Nov 1997 18:37:28 +-100

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 "Homosexuality, Marriage and the Family"
 (by Eric Fassin, of the Ecole Nationale Supérieure, in Le Monde, 5 Nov. 1997)

Hitherto, the self-declared opponents of the "contract for civil union" (CUCS) 
have concentrated on expressing their objections to homosexuality as such. 
Today, a new front is opening up: in an essay published jointly by the 
Saint-Simon Foundation and the magazine "Esprit", Irene Théry, who is a legal 
sociologist, seeks to show that one can be opposed to such a contract without 
being homophobic, indeed on behalf of those homosexuals who, as the 
descendants of (Michel) Foucault, have little desire to become "regimented". 
This call for a debate deserves to be heard.

She makes two complaints. On the one hand, the CUCS (like its predecessors, 
the CUC and CUS), confuses the sexual and non-sexual aspects, couples and 
non-couples, true co-habitants and those who merely happen to be living 
together, as if to avoid raising the issue of sexuality. This not only amounts 
to making any sexual prohibition unthinkable - as Irene Théry correctly 
stresses -  but also, paradoxically, it fails to recognise the legitimacy of 
homosexual couples' sexuality. It therefore seems to me (like many other 
people) that her criticism is valid. On the other hand,- and here the real 
bone of contention (and the real divergence) becomes apparent - the contract 
fails to differentiate between homosexual couples and heterosexual ones.

Its supporters say that this is the republican logic of integration. Not so, 
replies Irene Théry; a "mark-2 marriage" would destroy the unity and unicity 
of the republican civil marriage [note that in France and other countries 
following its approach, the State recognises only "civil" marriage performed 
on its territory in accordance with the provisions of the Civil Code, and 
purely religious ceremonies have no legal effect on the participants' civil 
status]. In particular, such a "quasi-marriage" would "inevitably" open the 
door to adoption and medically- assisted procreation; how would it be 
possible, without discrimination, to refuse them in some cases but not in 
others? For this reason, Irene Théry prefers the scandinavian model - which 
avoids the confusion by reserving a special status for homosexual couples, a 
contact that is absolutely equal to marriage except so far as children are 
concerned - to this "mixed" French model. In brief, it gives everything to 
homosexuals as individuals, but nothing in so far as they are members 
of a family [in fact, that is an over-simplification].

Some people are afraid, not without reason, that this new offensive against the 
CUCS may result in its death: those opposed to it will not need to confess to 
their homophobia. I myself think that at least it has the merit of drawing 
attention to the crucial issue, which has so far been kept hidden during the discussion:  is the homosexual couple a family, and does it therefore have a 
right to have children? In the past, "tactical prudence" has prevented this 
issue from being raised. But it must be considered now that a specialist in 
family issues has initiated the debate by calling for legal recognition of 
homosexual partnerships without admitting that they form a family, even if 
this amounts to throwing the baby out with the bathwater.

In fact, many homosexual couples do have children, either as a result of 
previous heterosexual relationships or through medically assisted procreation 
in the case of lesbians. And all the investigations undertaken in the 
United States have shown that such children are none the worse for it. So 
this is a purely legal question. Should this de facto situation be legally 
recognised, thus creating a "sexless" kinship (with two parents, regardless 
of their sex)? Indeed, the question can be framed in the opposite direction: 
On what legal basis can one refuse to allow homosexuality within the family? 
According to Irene Théry, to maintain the distinction between homosexuality 
and heterosexuality does not imply any sort of discrimination, it simply 
consists of retaining  the difference between the sexes in the principle 
of the family, and "recognising the finality that each sex needs the other 
for humanity to live and reproduce itself." Here, anthropology defines a 
symbolic order of the sexes and sexuality, which is also an order of things, 
immemorial and intangible: it's part of the culture.

This anthropology of sexual finality owes more to the psychoanalytical or 
religious tradition than to the social sciences. No doubt all societies 
everywhere have [their own] ideas about the difference between the sexes, 
but for what purpose? The anthropologist Françoise Héritier demonstrates this 
forcefully; the ideas about the difference are used predominantly to 
legitimise the inequality between the sexes. 
For lack of political arguments, do we now want to maintain that the inequality 
between the sexes is justified on cultural grounds?

Anthropology is not pre-destined, however; it is strongly influenced by 
history. If our society also has its ideas about the difference between 
the sexes, marriage is not necessarily the last refuge. Perhaps it would 
preferable to think about the difference in terms of sexual discrimination, 
regarding both gender and sexuality. 
And perhaps the 20th century is discovering the question of the nature of the 
family in the case of homosexuals just when, under the impulse from medical 
techniques for both contraception and reproduction, the links that have from 
time 
immemorial connected human sexuality with procreation on the one hand, and 
procreation with kinship on the other hand, are being stretched to the limit. 
And this is no doubt creating new ethical problems, the responses to which 
cannot be found by searching through the past of our societies.

If the family is not [necessarily] based on heterosexuality, what should we 
think about homosexual marriage? It is true that the French proposal for a 
"contract" defines [only] a "sub-marriage". A contract reserved for 
homosexuals alone on the scandianvian model would not, however, be a better 
solution; it's only a "para- marriage". In order to escape the alternative of 
"quasi-marriages", we must go for the top, rather than accepting second-best. 
Only by forgetting about such "pseudo- marriages" can the right question be 
discussed: quite simply, instead of duplicating traditional marriage, why not 
open it up to all couples, regardless of their sexuality (which would, of 
course, necessarily imply also opening up the provisions on co-habitation)? 

This is the solution that has been forgotten in the European debates, the third 
option for marriages between homosexuals. This rigorously universalist proposal is, 
however, particularly topical in the United States, where the Supreme Court of 
Hawaii has taken the initiative, even if its political and legal future remains 
uncertain after the reactions expressed in the Defense of Marriage Act.

In the American - or rather Hawaiian - model, marriage is a citizen's 
constitutional right: it must therefore be open to all, without discrimination on 
grounds of sex or sexuality. Unlike the French or scandinavian model, it would 
provide access to all the rights associated with marriage, notably those concerning 
children. 

There is no doubt that the traditional order of things - the Bible and the sub-
conscious, in other words, "culture", or less subtly "our culture", our 
customs and traditions, or even simply 'nature' - will be invoked in order 
to defend marriage and the family against this homosexual "menace". But what 
political _principle_ [if any] can our Republic find as a basis for objecting 
to such marriages?

The debate does not concern only homosexual marriages, but all marriages; not 
just the homosexual family, but all families. Indeed, the question applies 
not just to those who remain deprived of the possibility of choosing to marry 
their partner because they are homosexual, but also to [all] heterosexuals who 
are condemned, unless they wholly reject marriage, to conform to the existing 
discriminatory institution. Obviously, there is no question of compelling all 
homosexuals to get married, any more than there is one of compelling all 
heterosexuals to do so, but on the contrary it is simply one of opening up 
another option (together with legally-defined or de facto co-habitation); in 
other words a right that is both a freedom and a recognition.

The political advantage that implementing the Hawaiian marriage would give the 
family can be deduced here. Some would rejoice to see the institution of the 
family, [now potentially] including homosexual elements, abandon its purely 
heterosexual definition. Others would welcome the way in which it would take its
place again at the heart of the republican pact. Everybody should be glad that  
at last the concept of the family would no longer leave anybody outside the gate. 
As Irene Théry says so well, in her defence of the republican institution of 
marriage: "The unicity of civil marriage, marriage for all citizens, is above 
all a guarantee to everybody that they will never find themselves excluded one 
day." Is there a better argument for adopting the "American" marriage, 
one open to homosexuals? In France, as in the United States, it is a 
constitutional matter: One more effort, France, one more effort to be republican!
==END==