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Decision no. 2013-669 DC of 17 MAY 2013

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Law providing for same-sex marriage

Under the terms provided for by Article 61-2 of the Constitution, the Constitutional Council was seized of the Law providing for same-sex marriage on 23 April 2013 by Mr Christian JACOB, Mr Élie ABOUD, Mr Bernard ACCOYER, Mr Yves ALBARELLO, Mr Julien AUBERT, Mr Olivier AUDIBERT TROIN, Mr Patrick BALKANY, Mr Jean-Pierre BARBIER, Mr Jacques Alain BÉNISTI, Mr Sylvain BERRIOS, Mr Xavier BERTRAND, Mr Étienne BLANC, Mr Marcel BONNOT, Mr Jean-Claude BOUCHET, Ms Valérie BOYER, Mr Xavier BRETON, Mr Philippe BRIAND, Mr Bernard BROCHAND, Mr Gilles CARREZ, Mr Yves CENSI, Mr Jérôme CHARTIER, Mr Gérard CHERPION, Mr Guillaume CHEVROLLIER, Mr Alain CHRÉTIEN, Mr Jean-Louis CHRIST, Mr Dino CINIERI, Mr Éric CIOTTI, Mr Philippe COCHET, Mr Jean-François COPÉ, Mr François CORNUT-GENTILLE, Mr Édouard COURTIAL, Mr Jean-Michel COUVE, Ms Marie-Christine DALLOZ, Mr Gérald DARMANIN, Mr Olivier DASSAULT, Mr Marc-Philippe DAUBRESSE, Mr Jean-Pierre DECOOL, Mr Bernard DEFLESSELLES, Mr Lucien DEGAUCHY, Mr Rémi DELATTE, Mr Patrick DEVEDJIAN, Mr Nicolas DHUICQ, Ms Sophie DION, Mr Jean-Pierre DOOR, Mr Dominique DORD, Mr David DOUILLET, Ms Marianne DUBOIS, Ms Virginie DUBY-MULLER, Mr Christian ESTROSI, Mr Daniel FASQUELLE, Mr Georges FENECH, Mr François FILLON, Ms Marie-Louise FORT, Mr Yves FOULON, Mr Yves FROMION, Mr Laurent FURST, Mr Claude de GANAY, Mr Sauveur GANDOLFI-SCHEIT, Ms Annie GENEVARD, Mr Guy GEOFFROY, Mr Bernard GÉRARD, Mr Alain GEST, Mr Franck GILARD, Mr Georges GINESTA, Mr Charles-Ange GINESY, Mr Jean-Pierre GIRAN, Mr Claude GOASGUEN, Mr Philippe GOSSELIN, Mr Philippe GOUJON, Ms Claude GREFF, Mr Anne GROMMERCH, Ms Arlette GROSSKOST, Mr Serge GROUARD, Mr Henri GUAINO, Ms Françoise GUÉGOT, Mr Jean-Claude GUIBAL, Mr Jean-Jacques GUILLET, Mr Christophe GUILLOTEAU, Mr Michel HEINRICH, Mr Antoine HERTH, Mr Patrick HETZEL, Mr Philippe HOUILLON, Mr Guénhaël HUET, Mr Sébastien HUYGHE, Mr Christian KERT, Mr Jacques KOSSOWSKI, Ms Valérie LACROUTE, Mr Marc LAFFINEUR, Mr Jacques LAMBLIN, Mr Jean-François LAMOUR, Ms Laure de LA RAUDIÈRE, Mr Guillaume LARRIVÉ, Mr Charles de LA VERPILLIÈRE, Mr Thierry LAZARO, Mr Alain LEBOEUF, Ms Isabelle LE CALLENNEC, Mr Marc LE FUR, Mr Pierre LELLOUCHE, Mr Dominique LE MÈNER, Mr Jean LEONETTI, Mr Pierre LEQUILLER, Mr Philippe LE RAY, Mr Céleste LETT, Ms Geneviève LEVY, Ms Véronique LOUWAGIE, Mr Lionnel LUCA, Mr Gilles LURTON, Mr Jean-François MANCEL, Mr Alain MARC, Mr Laurent MARCANGELI, Mr Thierry MARIANI, Mr Hervé MARITON, Mr Olivier MARLEIX, Mr Franck MARLIN, Mr Alain MARSAUD, Mr Patrice MARTIN-LALANDE, Mr Alain MARTY, Mr Jean-Claude MATHIS, Mr François de MAZIÈRES, Mr Damien MESLOT, Mr Philippe MEUNIER, Mr Pierre MORANGE, Mr Pierre MOREL-A-L'HUISSIER, Mr Jean-Luc MOUDENC, Mr Alain MOYNE-BRESSAND, Mr Jacques MYARD, Ms Dominique NACHURY, Mr Yves NICOLIN, Mr Patrick OLLIER, Ms Valérie PÉCRESSE, Mr Jacques PÉLISSARD, Mr Bernard PERRUT, Mr Jean-Frédéric POISSON, Ms Bérengère POLETTI, Ms Josette PONS, Mr Christophe PRIOU, Mr Didier QUENTIN, Mr Bernard REYNÈS, Mr Arnaud ROBINET, Mr Camille de ROCCA SERRA, Ms Sophie ROHFRITSCH, Mr Martial SADDIER, Mr Paul SALEN, Mr François SCELLIER, Ms Claudine SCHMID, Mr André SCHNEIDER, Mr Jean-Marie SERMIER, Mr Fernand SIRÉ, Mr Thierry SOLÈRE, Mr Michel SORDI, Mr Éric STRAUMANN, Mr Claude STURNI, Mr Alain SUGUENOT, Mr Lionel TARDY, Mr Jean-Charles TAUGOURDEAU, Mr Guy TEISSIER, Mr Michel TERROT, Mr Jean-Marie TETART, Mr Dominique TIAN, Mr François VANNSON, Ms Catherine VAUTRIN, Mr Patrice VERCHÈRE, Mr Jean-Pierre VIGIER, Mr Philippe VITEL, Mr Michel VOISIN, Mr Laurent WAUQUIEZ, Mr Éric WOERTH, Ms Marie-Jo ZIMMERMANN, Mr Arnaud RICHARD, Mr Thierry BENOIT, Mr Bertrand PANCHER, Mr Francis HILLMEYER, Mr Franck REYNIER, Mr François SAUVADET, Mr Yannick FAVENNEC, Mr François-Xavier VILLAIN, Mr Rudy SALLES, Mr Philippe VIGIER, Mr Jean-Christophe FROMANTIN, Mr André SANTINI, Mr Charles de COURSON, Mr Philippe FOLLIOT, Mr Francis VERCAMER, Mr Gilles BOURDOULEIX, Mr Maurice LEROY, Mr François ROCHEBLOINE, Mr Hervé MORIN and Mr Yannick MOREAU, Members of Parliament;

And on the same day by Mr François ZOCCHETTO, Mr Jean-Claude GAUDIN, Mr Pierre ANDRÉ, Mr Gérard BAILLY, Mr Philippe BAS, Mr René BEAUMONT, Mr Christophe BÉCHU, Mr Michel BÉCOT, Mr Joël BILLARD, Mr Jean BIZET, Mr Pierre BORDIER, Mr Joël BOURDIN, Ms Marie-Thérèse BRUGUIÈRE, Mr François-Noël BUFFET, Mr François CALVET, Mr Christian CAMBON, Mr Jean-Pierre CANTEGRIT, Mr Jean-Noël CARDOUX, Mr Jean-Claude CARLE, Ms Caroline CAYEUX, Mr Gérard CÉSAR, Mr Pierre CHARON, Mr Alain CHATILLON, Mr Jean-Pierre CHAUVEAU, Mr Marcel-Pierre CLÉACH, Mr Gérard CORNU, Mr Raymond COUDERC, Mr Jean-Patrick COURTOIS, Mr Philippe DALLIER, Mr Serge DASSAULT, Ms Isabelle DEBRÉ, Mr Francis DELATTRE, Mr Robert del PICCHIA, Mr Gérard DÉRIOT, Ms Catherine DEROCHE, Mr Marie-Hélène DES ESGAULX, Mr Éric DOLIGÉ, Mr Philippe DOMINATI, Mr Michel DOUBLET, Ms Marie-Annick DUCHÊNE, Mr Alain DUFAUT, Mr André DULAIT, Mr Ambroise DUPONT, Mr Louis DUVERNOIS, Mr Jean-Paul EMORINE, Mr André FERRAND, Mr Louis-Constant FLEMING, Mr Bernard FOURNIER, Mr Jean-Paul FOURNIER, Mr René GARREC, Ms Joëlle GARRIAUD-MAYLAM, Mr Jacques GAUTIER, Mr Patrice GÉLARD, Mr Bruno GILLES, Ms Colette GIUDICELLI, Mr Alain GOURNAC, Mr Francis GRIGNON, Mr François GROSDIDIER, Mr Charles GUENÉ, Mr Pierre HÉRISSON, Mr Michel HOUEL, Mr Alain HOUPERT, Mr Jean-François HUMBERT, Mr Benoît HURÉ, Mr Jean-Jacques HYEST, Ms Sophie JOISSAINS, Ms Christiane KAMMERMANN, Mr Marc LAMÉNIE, Ms Élisabeth LAMURE, Mr Gérard LARCHER, Mr Robert LAUFOAULU, Mr Daniel LAURENT, Mr Jean-René LECERF, Mr Antoine LEFÈVRE, Mr Jacques LEGENDRE, Mr Dominique de LEGGE, Mr Jean-Pierre LELEUX, Mr Jean-Claude LENOIR, Mr Philippe LEROY, Mr Gérard LONGUET, Mr Roland du LUART, Mr Michel MAGRAS, Mr Philippe MARINI, Mr Pierre MARTIN, Ms Hélène MASSON-MARET, Mr Jean-François MAYET, Ms Colette MÉLOT, Mr Albéric de MONTGOLFIER, Mr Philippe NACHBAR, Mr Louis NÈGRE, Mr Philippe PAUL, Mr Jackie PIERRE, Mr François PILLET, Mr Xavier PINTAT, Mr Louis PINTON, Mr Rémy POINTEREAU, Mr Christian PONCELET, Mr Ladislas PONIATOWSKI, Mr Hugues PORTELLI, Ms Sophie PRIMAS, Ms Catherine PROCACCIA, Mr Jean-Pierre RAFFARIN, Mr Henri de RAINCOURT, Mr André REICHARDT, Mr Bruno RETAILLEAU, Mr Charles REVET, Mr Bernard SAUGEY, Mr René-Paul SAVARY, Mr Michel SAVIN, Mr Bruno SIDO, Ms Esther SITTLER, Mr Abdourahamane SOILIHI, Mr André TRILLARD, Ms Catherine TROENDLE, Mr François TRUCY, Mr Jean-Pierre VIAL, Mr Jean-Paul AMOUDRY, Mr Jean ARTHUIS, Mr Jean-Marie BOCKEL, Mr Jean BOYER, Mr Vincent DELAHAYE, Mr Marcel DENEUX, Mr Yves DÉTRAIGNE, Ms Muguette DINI, Mr Daniel DUBOIS, Mr Jean-Léonce DUPONT, Ms Jacqueline GOURAULT, Mr Jean-Jacques LASSERRE, Ms Valérie LÉTARD, Mr Hervé MARSEILLE, Mr Hervé MAUREY, Mr Jean-Claude MERCERON, Mr Michel MERCIER, Mr Aymeri de MONTESQUIOU, Ms Catherine MORIN-DESAILLY, Mr Christian NAMY, Mr Yves POZZO di BORGO, Mr Gérard ROCHE, Mr Henri TANDONNET and Mr Jean-Marie VANLERENBERGHE, Senators.

THE CONSTITUTIONAL COUNCIL,

Having regard to the Constitution;

Having regard to Ordinance no. 58-1067 of 7 November 1958 as amended, concerning the basic law on the Constitutional Council;

Having regard to basic law no. 2001-692 of 1 August 2001 regarding the laws on finance;

Having regard to basic law no. 2009-403 of 15 April 2009 on the application of Articles 34-1, 39 and 44 of the Constitution;

Having regard to the Civil Code;

Having regard to the Family and Social Action Code ;

Having regard to the Civil and Military Retirement Pensions Code;

Having regard to the Rural and Marine Fishing Code;

Having regard to the Public Health Code;

Having regard to the Social Security Code;

Having regard to the Labour Code;

Having regard to the observations of the Government, registered on 02.05.13;

Having regard to the observations in response presented by the applicant Members of Parliament registered on 10.05.13;

Having regard to the observations in response presented by the applicant Senators registered on 10.05.13;

Having heard the Rapporteur;

1. Considering that the applicant Members of Parliament and Senators have referred to the Constitutional Council the law providing for same-sex marriage; that they argue that this law, including in particular Articles 14 and 22, was adopted in an unconstitutional manner; that they also assert that Articles 1, 7, 13, 14 and 21 are unconstitutional; that the applicant Members of Parliament moreover dispute the constitutionality of Article 19; that the applicant Senators moreover challenge the manner in which Articles 16, 17, 18 and 19 of the Law were adopted and the constitutionality of Articles 8, 11 and 12;

THE PROCEDURE FOLLOWED WHEN ADOPTING THE LAW:

The impact study appended to the bill:

2. Considering that the applicants assert that the impact study appended to the bill did not enable sufficient clarification to be provided to the members of Parliament as to the scope of the text placed before them; that in particular, this impact study failed to specify the social, financial and legal consequences of the provisions of the bill; that it also failed to provide a comparative account of the legislation and the compatibility of the bill with the international treaties to which France is a party;

3. Considering that pursuant to the third and fourth subparagraphs of Article 39 of the Constitution: "The tabling of Government Bills before the National Assembly or the Senate shall comply with the terms determined by an organic law. Government Bills may not be included on the agenda if the Conference of Presidents of the first House to which the Bill has been referred declares that the rules determined by the organic law have not been complied with. In case of a disagreement between the Conference of Presidents and the Government, the President of the relevant House or the Prime Minister may refer the matter to the Constitutional Council, which shall rule within a period of eight days"; that the first subparagraph of Article 8 of the aforementioned basic law of 15 April 2009 provides that: "Draft bills shall be subject to an impact study. The documents setting out the results of this impact study shall be appended to the draft laws upon transmission to the Conseil d'État. They shall be filed with the bureau of the first assembly to take action at the same time as the draft bills to which they refer"; that, according to the first subparagraph of Article 9 of the same organic law, the Conference of Presidents of the Assembly for the bureau to which the draft bill was submitted shall have a time-limit of ten days after it was tabled in order to determine whether or not the rules on the impact studies have been complied with;

4. Considering that the bill was tabled on 7 November 2012 before the National Assembly, and that the Conference of Presidents of the National Assembly did not receive any application objecting that the rules on impact studies had been breached; that the committees of the Houses conducted numerous hearings; that, having regard to the contents of the impact study, the objection alleging that Article 8 of the organic law of 15 April 2009 has been violated must be rejected; that the same applies for the objection alleging a breach of the constitutional requirements of clarity and sincerity within parliamentary debates;

The parliamentary procedure:

5. Considering that, according to the applicant Members of Parliament, the setting of a programmed legislative timetable for examination of the second reading of the bill before the National Assembly, as well as the refusal to grant an exceptional extension to the duration of the examination, which should have been granted given that the president of an opposition grouping had submitted a request to that effect, resulted in a violation of the requirements of clarity and sincerity within parliamentary debates and the specific rights of the opposition and minority groupings provided for under Article 51-1 of the Constitution;

6. Considering on the one hand that, according to the tenth subparagraph of Article 49 of the regulations of the National Assembly, any group president may legitimatelly obtain an exceptional extension to the duration of the programmed legislative timetable up to a maximum limit set by the Conference of Presidents, once per session; that the Conference set that maximum limit, during the second reading, at twenty-four hours; that the president of an opposition grouping submitted a request for an exceptional extension to the Conference of Presidents and this request was satisfied by setting the programmed legislative timetable for twenty-five hours; that according to the above, the objection alleging the failure to grant an exceptional extension to the programmed legislative timetable must be rejected;

7. Considering, on the other hand, that pursuant to Article 51-1 of the Constitution: "The Rules of Procedure of each House shall determine the rights of the parliamentary groups set up within it. They shall recognize that opposition groups in the House concerned, as well as minority groups, have specific rights"; that in the present case, the duration of the programmed legislative timetable for the examination of the bill during the second reading was set at twenty-five hours; that it follows that there was no violation either of Article 51-1 of the Constitution or of the requirements of clarity and sincerity within parliamentary debate;

The inclusion of Articles 16, 17 and 18 in the Law referred:

8. Considering that the applicant Senators assert that Articles 16, 17 and 18 do not have any connection with the initial text and were adopted in breach of the first subparagraph of Article 45 of the Constitution; that they also assert that owing to their financial nature, these provisions should be enacted within a law on finance or a law on the financing of social security;

9. Considering, in the first place, that pursuant to the second phrase of the first subparagraph of Article 45 of the Constitution: "Without prejudice to the application of Articles 40 and 41, all amendments which have a link, even an indirect one, with the text that was tabled or transmitted, shall be admissible on first reading";

10. Considering that Article 16, which amends Article L. 88 of the Civil and Military Retirement Pensions Code, corresponds to sentence 2 of Article 11 of the bill tabled before the National Assembly on 7 November 2012; that the same applies for Article 18, amending Articles L. 331-7, L. 351-4, L. 613-19, L. 613-19-1, L. 613-19-2, L. 711-9, L. 713-6, L. 722-8, L. 722-8-1 and L. 722-8-3 of the Social Security Code, which corresponds to Article 14 of the bill tabled before the National Assembly; that the objection alleging the violation of the first subparagraph of Article 45 of the Constitution is inoperative;

11. Considering that Article 17 was introduced during the first reading before the National Assembly; that this Article, which amends Articles L. 732-10, L. 732-11, L. 732-12 and L. 732-12-1 of the Rural and Marine Fishing Code and introduces a new Article L. 732-10-1 into this Code, provides, subject to certain conditions in the event of adoption, for the payment of a substitute allowance to self-enployed agricultural workers, irrespective of the beneficiaries' gender, in the same manner as the provision under Article 14 of the bill tabled before the National Assembly for salaried workers falling under the general regime; that accordingly, there is a link between Article 17 and the initial bill;

12. Considering secondly that whilst Articles 16, 17 and 18 include provisions with an impact on the cost of social security regimes as well as on the costs of the special purpose account relating to pensions, they nevertheless do not fall within the exclusive domain of finance laws as defined under Articles 34 and 35 of the aforementioned Organic Law of 1 August 2001, or within the exclusive domain of laws on the financing of social security as defined under Article L.O. 111-3 of the Social Security Code;

13. Considering that according to the above, Articles 16, 17 and 45 were adopted according to a constitutional procedure;

– THE APPLICABLE PROVISIONS OF THE CONSTITUTION:

14. Considering that, pursuant to Article 34 of the Constitution, the law determines the rules concerning “the status and capacity of persons, matrimonial property systems, inheritance and gifts”; that the legislator is free at any time, when ruling on matters within its competence, to adopt new provisions that are in its view appropriate, and to amend previous legislation or repeal it and, depending on the circumstances, replace it with other provisions, provided that when exercising this power, it does not deprive these constitutional requirements of legal guarantees; that Article 61-1 of the Constitution does not grant the Constitutional Council a general mandate for judgments and decision-making in a manner similar to that of Parliament, but only gives it the competence to rule on the constitutionality of legislation referred to it for examination;

15. Considering that Article 6 of the Declaration of the Rights of Man and the Citizen of 1789 provides that: “Law [···] must be the same for all, whether it protects or punishes”; that the principle of equality does not prevent the legislator from settling different situations in different ways, or from derogating from equality for the general interest, provided that in both cases the difference in treatment that results is either in direct relationship with the subject of the law established thereby; that whilst this principle requires as a general matter that individuals in the same situation receive identical treatment, it does not follow that it requires individuals in different situations to be treated differently;

16. Considering that the right to lead a normal family life stems from the tenth subparagraph of the Preamble to the Constitution of 1946, which stipulates that: “The Nation provides individuals and families with the necessary conditions to their development”;

– MARRIAGE:

Paragraph I of Article 1:

17. Considering that Article 1 of the Law re-enacts an Article 143 of the Civil Code within Chapter I of Title V of Book I of the Civil Code, which is dedicated to the characteristics and conditions which are prerequisites for contracting marriage; that according to that Article: "Marriage may be contracted by two individuals of a different sex or of the same sex";

18. Considering that, according to the applicants, the opening of marriage to same-sex couples violates the fundamental principle recognised under the laws of the Republic according to which marriage is a union between a man and a woman; that they also assert that the alteration of the definition of marriage would violate the requirements of the fourteenth recital of the Preamble to the 1946 Constitution;

19. Considering that the applicant Senators similarly assert that Article 34 of the Constitution only refers to "matrimonial property systems"; that, due to its fundamental status, the definition of marriage falls under the competence of the constituent authority; that marriage between persons of the same sex would violate a "natural deep-rooted principle of civil law" according to which marriage is founded on the principle that the partners be of a different sex; that the opening of marriage to same-sex couples "would divert the institution of marriage towards ends extraneous to the institution of matrimony"; that finally, having regard to married couples, the importance of the change effected by the contested provisions to the definition of marriage violates freedom to marry and the right to maintain lawfully concluded agreements;

20. Considering in the first place that the rules on marriage relate to the status of individuals; that accordingly, the objection alleging that Article 34 of the Constitution does not vest the legislator with competence to specify the characteristics and conditions required in order to contract marriage must be rejected;

21. Considering second that the republican tradition cannot be properly invoked in order to assert that a legislative text which is at odds with it breaches the Constitution unless that tradition has given rise to a fundamental principle recognised by the laws of the Republic within the meaning of the first recital of the Preamble to the 1946 Constitution; that, whilst republican legislation prior to 1946 and subsequent legislation until the enactment of the Law referred have considered marriage as a union between a man and a woman, this rule, which does not affect fundamental rights and freedoms, national sovereignty or the organisation of public authorities cannot amount to a fundamental principle recognised by the laws of the Republic within the meaning of the first recital of the 1946 Preamble; that moreover, the objection alleging that marriage is "naturally" the union of a man and a woman must in any case be rejected;

22. Considering third that in opening up access to the institution of marriage to same-sex couples, the legislator considered that the difference between couples comprised of a man and a woman and same-sex couples no longer justified the fact that the latter could no longer obtain the status and legal protection associated with marriage; that it is not for the Constitutional Council to substitute its appraisal for that of the legislator regarding the assessment of this difference in circumstances in relation to marriage;

23. Considering fourth that the provisions of Article 1 do not violate acquired rights under earlier marriages; that accordingly, the objection alleging a violation of the freedom to marry, which amounts to a personal freedom protected under Articles 2 and 4 of the 1789 Declaration, and the right to maintain lawfully concluded agreements resulting from Article 4 thereof must be rejected;

24. Considering fifth that the provisions of Article 1 do not have the objective or effect of derogating from the principle according to which all agreements in force are binding upon the parties and must be implemented in good faith; that accordingly, the objections alleging that the principles of public international law and the fourteenth recital of the 1946 Preamble have been violated must be rejected; that it is not for the Constitutional Council to examine the compatibility of a law with the international law commitments of France when seized pursuant to Article 61 of the Constitution;

25. Considering that according to the above, the provisions of Article 143 of the Civil Code do not violate the aforementioned requirements of constitutional law;

Paragraph II of Article 1:

26. Considering that paragraph II of Article 1 of the law inserts a Chapter IVa after Chapter IV of Title V of Book I of the Civil Code, which is entitled "On the rules of conflict of laws", including Articles 202-1 and 202-2;

27. Considering that pursuant to the first subparagraph of Article 202 -1 of the Civil Code: "The characteristics and conditions which are prerequisites for contracting marriage shall be governed by the personal law of each spouse"; that pursuant to the second subparagraph of that Article: "However, two individuals of the same sex may contract marriage where permitted either by the personal law of at least one of them or the law of the state or territory within which at least one of them is domiciled or resident";

28. Considering that, according to the applicants, these provisions which introduce a rule on conflict of laws in favour of same-sex marriages which differs from that applicable to marriages involving individuals of the opposite sex violates the principle of equality before the law; that they also assert that they would have the effect of encouraging foreigners to come to France to "circumvent the bars under their national law", of favouring "marriages of convenience" in order to circumvent the legislation on entry into and residence in France as well as the law on nationality, and will lead to an increase in the number of marriages which are valid in one country but invalid in another; that the principle of legal certainty would accordingly be violated;

29. Considering first that, according to the provisions of the second subparagraph of Article 202-1 of the Civil Code as in force following the enactment of paragraph II of Article 1 of the Law referred, the legislator intended to introduce specific provisions according to which "two individuals of the same sex may contract marriage where permitted either by the personal law of at least one of them or the law of the state or territory within which at least one of them is domiciled or resident"; that the legislator is at liberty to allow two individuals of the same sex and of foreign nationality, whose personal law prohibits same-sex marriage, to marry in France provided that the other prerequisites for marriage, including in particular the residence requirement, have been met; that the legislator, which was not required to adopt the same rules for marriages contracted between persons of the opposite sex, did not treat differently individuals in similar situations; that accordingly, the objection alleging that the principle of equality before the law has been violated must be rejected;

30. Considering second that the possibility that the law may be circumvented or abused upon application does not render it unconstitutional; that it is for the courts to prevent, to render ineffective or, as the case may be, to punish such practices; that the objection alleging a breach of legal certainty must in any case be rejected;

31. Considering that according to the above, the provisions of Article 202-1 of the Civil Code, which do not violate any requirement of constitutional law, must be ruled constitutional;

– ADOPTION:

32. Considering that Articles 343 and 346 of the Civil Code, which apply both to full adoption and to simple adoption, provide on the one hand that adoption "may be requested by two individuals married to each other···" and on the other hand that "no person may be adopted by more than one individual unless they are married to each other"; that moreover, in accordance both with Article 356 of the Civil Code, which is applicable to full adoption, and Article 365 of the Code, which is applicable to simple adoption, taking account of the scope of these provisions under the settled case law of the Cour de Cassation, the right of adoption by a couple is only available to married couples; that accordingly, the opening of marriage to same-sex couples has the consequence of permitting adoption by same-sex couples as well as within such couples;

33. Considering that Articles 7 and 8 of the Law amend Articles 345-1 and 360 of the Civil Code in order to set the terms under which a child who has already been adopted by an individual may also be adopted by the spouse of that individual;

34. Considering that Article 13 of the Law introduced an Article 6-1 into the Civil Code according to which: "Marriage and adoptive filiation shall entail the same legal effects, rights and obligations recognised by the law, with the exception of those provided for under Title VII of Book I of this Code, irrespective of whether the parents are of the opposite sex or of the same sex";

35. Considering that the applicants call into question the comprehensibility of these provisions, the constitutionality of the opening of adoption to same-sex couples and the amendments introduced by Articles 7 and 8 to the provisions of the Civil Code on adoption;

The comprehensibility of the provisions on adoption:

36. Considering that the applicants assert that the provisions of the Civil Code which refer to filiation refer distinctly to "the father" and "the mother"; that in providing that marriage and filiation shall entail the same effects, rights and obligations irrespective of whether the married couple are of the opposite sex or the same sex, the provisions of Article 13 entail on the one hand that the terms "father" and "mother" may refer to two men or two women and, on the other hand, that the scope of these words will vary depending upon whether or not they are included in Title VII of Book I of the Civil Code; that it follows that the requirements of clarity and precision within the law have been violated; that in enabling a link of filiation to be established with two individuals of the same sex without amending the provisions of Title VII of Book I of the Civil Code, these provisions moreover make certain provisions of the Civil Code unintelligible, including in particular Articles 320, 330, 333, 336 and 336-1; that the provisions of Article 310 of the Civil Code on equality between children are also claimed to be unintelligible;

37. Considering that the applicant Members of Parliament furthermore assert that in failing to make the necessary changes to the rules on the presumption of paternity, medically assisted protection and gestational surrogacy, the contested provisions moreover rendered the overall body of these rules inconsistent and unintelligible;

38. Considering that it is for the legislator to exercise to the full the powers vested in it by the Constitution, including in particular Article 34; that the objective of constitutional standing that the law should be intelligible and accessible which results from Articles 4, 5, 6 and 16 of the 1789 Declaration requires the legislator to enact provisions which are sufficiently precise and which are not formulated in an equivocal manner;

– Title VII of Book I of the Civil Code:

39. Considering that, in laying down rules on the establishment of and challenge to filiation, Book I of the Civil Code includes a Title VII dedicated to "filiation" and Title VIII dedicated to "adoptive filiation";

40. Considering that Title VII distinguishes maternal filiation and paternal filiation; that Article 320 of the Civil Code, which includes Title VII, provides that: "Unless it has been challenged in court, legally established filiation shall preclude the establishment of any other filiation in contradiction with it"; that accordingly, the provisions of this Article prevent two maternal filiations or two paternal filiations from being established in relation to the same child; that accordingly, in particular, filiation may not be established within a same-sex couple through the presumption under Article 312 of the Civil Code; that marriage has no effect on the other mechanisms for establishing filiation provided for under Title VII of Book I of the Civil Code;

41. Considering that within Title VIII, Article 358, which is applicable to children who have been subject to full adoption, provides that: "An adoptee has, in the family of the adopter, the same rights and obligations as a child whose filiation is established under Title VII" of Book I; that in providing as a general measure of coordination that adoptive filiation shall entail the same effects, rights and obligations recognised by law, with the exception of those provided for under Title VII of Book I, irrespective of whether the married couple or the parents are of the opposite sex or the same sex, the provisions of Article 6-1 of the Civil Code don't intend to preclude the application of the rule according to which adopted children shall benefit from the same rights as those whose filiation has been legally established pursuant to Title VII, irrespective of whether their parents are of the same sex or of the opposite sex;

42. Considering that according to the above, the objection alleging that Article 6-1 of the Civil Code renders Title VII of Book I of the Civil Code unintelligible must be rejected;

– Article 13 of the Law:

43. Considering that, with the exception of the provisions of Title VII of Book I of the Civil Code, the rules of civil law, including in particular those on parental authority, marriage, matrimonial property systems and inheritance do not provide for any difference between men and women with regard to marital relations, the consequences resulting therefrom and the consequences for the establishment of a link of filiation; that accordingly, in providing that marriage and filiation entail the same effects, rights and obligations recognised by law, irrespective of whether the married couple or the parents are of the opposite sex or the same sex, without removing the references to "father" and "mother" or "the husband and the wife" within these texts, Article 6-1 of the Civil Code does not render these rules unintelligible;

44. Considering that, on the one hand, the contested provisions do not have either the object or effect of altering the scope of the provisions of Article 16-7 of the Civil Code which provides that: "any agreement relating to procreation or gestation on behalf of another shall be void"; that on the other hand according to Article L. 2141-2 of the Public Health Code, medically assisted procreation has the object of remedying medically diagnosed pathological infertility within a couple comprised of a man and a woman of reproductive age, irrespective of whether or not they are married; that the situation of couples comprised of a man and a woman with regard to procreation is different to that of same-sex couples; that the principle of equality does not prevent the legislator from regulating different situations in a different manner, provided that the resulting difference in treatment is directly linked to the objective laid down by the law; that accordingly, neither the principle of equality nor the objective of constitutional standing that the law should be accessible and intelligible requires that, when opening up marriage and adoption to same-sex couples, the legislator amended the legislation governing these different matters;

45. Considering that according to the above, the objections alleging that Article 13 of the Law is unintelligible must be rejected;

Adoption by same-sex couples or by a member of a same-sex couple:

46. Considering that, according to the applicants, the possibility given to two individuals of the same sex to adopt a child violates the "principle of constitutional standing of bilinear filiation based on sexual alterity" proclaimed by the laws of the Republic, as well as the constitutional right of all children to establish their filiation from their father and their mother; that adoption by two individuals of the same sex would moreover violate the right of the child to lead a normal family life as well as the protection of the superior interest of the child; that it would also lead to a violation of the provisions of Article 3-1 of the international Convention on the Rights of the Child;

47. Considering that they also assert that, where the child is subject to full adoption by two individuals of the opposite sex, the cancellation of its prior filiation ensures that the fact of adoption may remain a secret and causes the child to enter into the adoptive family "as a biological child"; that the possibility of adoption by two individuals of the same sex would on the contrary necessarily reveal the sexual orientation of the adoptive parents and the adoptive nature of the filiation; that this would result in a violation of the right to protection of private life and equality before the law;

48. Considering that they assert finally that, given in particular the difficulties encountered by same-sex couples in adopting, the ability to establish filiation for two individuals of the same sex will encourage couples to travel abroad for medically assisted procreation and gestation on behalf of another thereby circumventing French law;

– The challenges alleging a breach of the principle of equality and the right to lead a normal family life:

49. Considering in the first place that, on the one hand, in permitting adoption by two individuals of the same sex or by a member of a same-sex couple, the legislator, which is competent to specify rules governing the status and capacity of individuals pursuant to Article 34 of the Constitution, considered that the fact that the gender of the adoptive parents is the same does not in itself constitute an obstacle to the establishment of a bond of adoptive filiation; that it is not for the Constitutional Council to substitute its appraisal for that of the legislator regarding the consideration, for the purpose of establishing a bond of adoptive filiation, of the difference between same-sex couples and couples comprised of a man and a woman;

50. Considering that, on the other hand, pursuant to Article 356 of the Civil Code, full adoption provides the child with a form of filiation which replaces its original filiation; that the principle of equality requires that children who have been fully adopted should benefit from the same rights within their adoptive family as those available to children whose filiation has been established pursuant to Title VII of Book I of the Civil Code; that such a requirement is satisfactory for the provisions of Article 358 of the Civil Code cited above;

51. Considering moreover that the freedom proclaimed under Article 2 of the 1789 Declaration implies the requirement to respect private life; that however, no requirement of constitutional law stipulates either that the adoptive nature of filiation be concealed or that the parental bonds established through adoptive filiation must reproduce those of biological filiation; that accordingly, the objection alleging that the ability of two individuals of the same sex to adopt would violate the principle of equality and the right to the protection of private life must be rejected;

52. Considering second that the contested provisions to not have either the objective or effect of granting the "right to have a child" to same-sex couples; that they do not exempt same-sex couples from the rules, conditions and controls established in relation to adoptive filiation; that in effect, these provisions do not alter the rule, laid down in the first subparagraph of Article 353-1 of the Civil Code, according to which: "In the event of the adoption of a state ward, a child under the care of an authorised adoption agency or a foreign child who is not the child of the spouse of the adopting party, the court shall ascertain that the applicant or applicants have obtained approval to adopt or have been exempted from that requirement before issuing an order of adoption"; that it has also not introduced any exception to the rule, laid down in the first subparagraph of Article L. 225-2 of the Code of Social Action and Families, according to which: "State wards may be adopted by individuals in whose care they have been placed by the children's social aid service, provided that the emotional bonds which have been established between them justify this measure, by individuals approved to this effect or, if in the interest of the said wards, by individuals whose suitability to give them a home has been duly established in a state other than France, in the event of an international agreement committing the said state to that effect"; that the provisions of Article L. 225-17 shall also apply, according to which: "Individuals who provide a home to a foreign child with a view to its adoption must have obtained approval pursuant to Articles L. 225-2 to L. 225-7"; that accordingly, same-sex couples who wish to adopt a child shall be subject, in the same manner as those comprised of a man and a woman, to a procedure aimed at establishing their capacity to provide a home to a child in order to adopt it;

53. Considering that the constitutionality of a law which has already been promulgated may be assessed during a review of legislative provisions which amend or supplement or affect its scope; that in the present case the contested provisions affect the scope of Articles L. 225-2 and L. 225-17 of the Code of Social Action and Families; that the provisions on the approval of the adopting party or parties, irrespective of whether or not they are of the same sex, cannot lead to a situation in which such approval is issued without any verification by the administrative authorities, which must occur in each case, of compliance with the requirement that adoption is compatible with the best interests of the child, which may be inferred from the tenth recital of the Preamble to the 1946 Constitution; that, subject to this reservation, the provisions of Articles L. 225-2 and L. 225-17 of the Code of Social Action and Families do not violate the requirements laid down in the tenth recital of the 1946 Preamble;

54. Considering on the other hand that the contested provisions do not derogate from Article 353 of the Civil Code, according to which an adoption order may be issued by the regional court upon request by the adopting individual where the conditions laid down by the law have been met "and if adoption is compatible with the best interests of the child"; that these provisions, which are applicable irrespective of whether the adopting individuals are of the same or the opposite sex, implement the requirement laid down in the tenth subparagraph of the Preamble to the 1946 Constitution according to which an adoption order may only be issued if this is compatible with the best interests of the child;

55. Considering that according to the above, the objection alleging that the contested provisions violate the tenth subparagraph of the 1946 Preamble must be rejected; that the same applies for the objection alleging that the rights of the child would be afforded unequal protection depending upon whether they are adopted by parents of the same sex or parents of the opposite sex;

– The other challenges:

56. Considering in the first place that republican tradition cannot be invoked in order to argue that a legislative text which runs contrary to it is unconstitutional, unless that tradition has given rise to a fundamental principle recognised by the law of the Republic; that republican legislation prior to the 1946 Constitution on the conditions applicable to adoption and the establishment of maternity and paternity at all times included rules limiting or setting the terms under which a child was able to establish bonds of filiation with his or her biological father or mother; that in particular, the legal regime governing actions seeking a declaration of paternity was altered by the Law of 16 November 1912 on the judicial declaration of biological paternity whilst actions seeking to establish the paternity of children born out of wedlock were prohibited until Law no. 72-3 of 3 January 1972 on filiation; that the same rules on the adoption of underage children were amended by the Law of 19 June 1923 on adoption; that accordingly, the objection alleging a violation of the fundamental principle recognised by the laws of the Republic on the "bilinear nature of filiation based on sexual alterity" must in any case be rejected; that the same applies for the objection alleging that a constitutional principle guaranteeing the right of every child to establish his or her filiation concurrently with regard both to the father and the mother has been breached;

57. Considering second that, whilst the provisions of Article 55 of the Constitution vest treaties, subject to the conditions laid down thereunder, with a higher authority than that of laws, they do not require or imply that compliance with this principle is necessary during the constitutional review of legislation; that accordingly, the objection alleging that the international Convention on the Rights of the Child has been breached must in any case be rejected;

58. Considering third that the possibility that the law may be circumvented upon application does not render it unconstitutional; that it is for the courts to prevent, to render ineffective or, as the case may be, to punish such practices;

59. Considering that according to the above, the opening of adoption to same-sex couples and members of a same-sex couple does not breach the aforementioned requirements of constitutional law; that the provisions of Articles 1 and 13 of the Law referred, which do not violate any other requirement of constitutional law, must be ruled constitutional;

The adoption of a child who has already been adopted :

60. Considering that Article 7 of the Law introduces point 1a into Article 345-1 of the Civil Code in order to enable the adoption of a child of the spouse "Where the child has been fully adopted by the spouse alone and his filiation has not been established"; that Article 8 of the Law introduces a third subparagraph into Article 360 of the Code according to which: "A child who has previously been adopted by one person only by way of simple adoption or full adoption may be adopted a second time by the spouse of the latter by way of simple adoption";

61. Considering that the applicant Senators assert that by maintaining the rule according to which a child may not be adopted a second time whilst removing that prohibition in order to enable the child to be adopted by the spouse, the provisions of Articles 7 and 8 violate the principle of equality before the law;

62. Considering that Article 346 prohibits adoption by two individuals if they are not married; that the second subparagraph of Article 360 permits a child to be adopted by way of simple adoption where he has already been fully adopted "if justified by serious reasons"; that according to the second subparagraph of Article 356 of the Civil Code in relation to full adoption, and the first subparagraph of Article 365 of the Code in relation to simple adoption, the adoption of the child of the spouse will produce identical effects to those produced by adoption by a married couple; that the amendments made to Articles 345-1 and 360 of the Civil Code stipulate the conditions under which a child who has already been adopted may be adopted once again by the spouse of the adopting individual; that by reserving that possibility for the child to be adopted by the spouse, the legislator took account, as it was at liberty to do, of the difference between adoption within a couple and other forms of adoption; that accordingly, the objection alleging a violation of the principle of equality must be rejected;

63. Considering that accordingly, the provisions of Articles 7 and 8 of the Law referred, which do not violate any other requirement of constitutional law, must be ruled constitutional;

– THE PROVISIONS GOVERNING FAMILY NAMES:

64. Considering that Article 11 applies to the rules on the attribution of family names; that the first sentence of paragraph I thereof completes the first subparagraph of Article 311-21 of the Civil Code, on filiation, by a provision which states that "in the event of disagreement between the parents over the child's surname reported by one of them to the official from the registry office at the latest on the day on which the birth is registered or the day after birth, if filiation is established at the same time for both parents, the child shall bear both surnames, limited to the first family name for each of them, which shall appear in alphabetical order";

65. Considering that paragraph III of Article 11 rewords Article 357 of the Civil Code on the effects of full adoption on the child's surname and name; that, according to this Article, adoption entails the attribution to the child of the adopting individual's surname; that if a child is adopted by the spouse or if a child is adopted by a married couple, the adopting individual and its spouse, or the adopting individuals shall choose the family name to be attributed to the child by joint declaration: either the surname of one of them or both of their surnames appearing in the order chosen by them, limited to the first family name for each of them, and if no joint declaration is made, the child shall bear the surname of the adopting individual and its spouse or of each of the adopting individuals, limited to each of them's first family name appearing in alphabetical order;

66. Considering that Article 12 of the Law referred amends Article 361 of the Civil Code by rendering the provisions governing full adoption applicable to simple adoption with the effect of specifying that the last subparagraph of Article 357 on the surnames of adopted children shall be applicable in the event of simple adoption; that paragraph II of Article 12 rewords Article 363 of the Code on the child's surname in the event of simple adoption; that according to this Article, as a matter of principle, where certain conditions are met and if approved by the child, simple adoption shall have the effect of attributing the adoptee the surname of the adopting individual by its addition to the surname of the former; that where either or both the adoptee and the adopting individual has or have a double-barrelled surname, the name allocated to the adoptee shall result from the addition of the adopting individual's surname to its own, limited to one single name for each of them, and that in the event of disagreement or if no choice is made, the name attributed to the child shall result from the addition in second position of the first surname of the adopting individual to the first surname of the child;

67. Considering that, according to the applicant Senators, the new wording of Article 311-21 of the Civil Code resulting from Article 11 of the Law referred amends "in an artificial manner the rules applicable to the attribution of the family name in an attempt to find a solution to the creation of artificial bonds of filiation"; that due to their complexity, these provisions "would inevitably lead to a proliferation of double-barrelled family names" and "would also lead to the disappearance of patronymic names at the end of the alphabet"; that they also assert that the difference in the provision of a choice regarding the surname between adopted children and other children violates the principle of equality before the law; that they finally assert that the provisions of Article 12, which "operate according to the same logic" are unintelligible and violate the principle of equality;

68. Considering that, according to the provisions of Articles 11 and 12 of the Law referred which reword Articles 357 and 363 of the Civil Code, the legislator intended in particular to draw the consequences for the attribution of family names of the opening of adoption to same-sex couples; that the legislator in particular provided that if no declaration is made by the spouse specifying the name of the child, the child shall bear the surname of the adopting individual and its spouse or of each of the adopting individuals, limited to the first family name for each of them, appearing in alphabetical order; that the amendment made by Article 11 to Article 311-21 of the Civil Code makes provision for a similar rule for children whose filiation has been established according to the procedures provided for under Title VII of Book I of the Code; that in reserving the application of this rule to cases involving disagreement between the parents reported by one of them to the official from the registry office at the latest on the day on which the birth is registered, the legislator established a difference in treatment which is made necessary by the difference between the formalities governing the attribution of the family name, on the one hand in the event of filiation, and on the other hand in the event of adoptive filiation; that this difference in treatment does not violate the principle of equality; that accordingly, the objection alleging that it has been violated must be rejected;

69. Considering that according to the above, the provisions of Articles 11 and 12, which are not affected by any form of unintelligibility, do not violate any requirement of constitutional law and must be ruled constitutional;

– THE PROVISIONS APPLICABLE TO THE LABOUR CODE:

70. Considering that Article 19 introduces an Article L. 1132-3-2 after Article L. 1132-3-1 of the Labour Code, which is drafted as follows: "No employee may be punished, dismissed or subjected to discriminatory treatment pursuant to Article L. 1132-1 due to the refusal to accept a transfer to a state in which homosexuality is a criminal offence on the grounds of its sexual orientation";

71. Considering that, according to the applicants, these provisions, which lack any link with the text, were adopted in breach of the first subparagraph of Article 45 of the Constitution; that the applicant Members of the National Assembly moreover assert that they oblige employees to disclose their sexual orientation to their employer, in breach of the right to respect for private life implied by Article 2 of the 1789 Declaration; that they also breach the principle of equality between employees with regard to their sexual orientation;

72. Considering in the first place that Article 19 is the result of an amendment introduced during the first reading before the National Assembly into the initial bill and was amended during the first reading before the Senate; that, having regard to its object, it has a link with the initial bill; that the manner in which it was adopted is constitutional;

73. Considering second that, in enacting the contested provisions, the legislator intended to guarantee protection to employees who would have refused a transfer to a state in which homosexuality is a criminal offence on the grounds of their sexual orientation; that it is for the employee to decide whether to avail itself of this protection; that the provisions of Article 19 do not in themselves violate the right of these employees to respect for their private life; that the objection must accordingly be rejected;

74. Considering third that, contrary to the assertions of the applicants, the contested provisions do not have the object or effect of establishing any difference in treatment between individuals in an identical situation; that accordingly, the objection alleging that the principle of equality has been breached must be rejected;

75. Considering that according to the above, article 19 of this law should be declared constitutional;

– THE USE OF ORDINANCES:

76. Considering that Article 14 authorises the Government to issue ordinances to adopt certain measures of coordination which are necessary in order to bring the general corpus of applicable legislation into line with the law referred, with the exception of the Civil Code;

77. Considering that, according to the applicants, the introduction of this provision by amendment, which would circumvent the requirement to present an impact study corresponding to the request for authorisation, amounts to a breach of procedure; that the substance and scope of this authorisation are not defined with sufficient precision, in breach of Article 38 of the Constitution; that finally, in providing for the immediate entry into force of other provisions of the law referred whereas the provisions adopted by ordinance on the basis of Article 14 would enter into force after six months, the legislator did not ensure respect for the constitutional requirements that the law should be accessible and intelligible;

78. Considering that, first, pursuant to the first subparagraph of Article 38 of the Constitution: "In order to implement its programme, the Government may ask Parliament for authorization, for a limited period, to take measures by Ordinance that are normally the preserve of statute law"; that it follows from this provision that only the Government may seek authorisation from Parliament to adopt such ordinances, whilst no requirement of constitutional law dictates that such a request be included in the initial bill; that in the present case, Article 14 results from a governmental amendment introduced during the first reading before the Senate; that accordingly, the objection alleging a violation of the requirements applicable to bills with regard to their tabling is inoperative; that Article 14 was adopted according to a procedure which complies with the Constitution;

79. Considering second that, whilst Article 38 of the Constitution imposed an obligation on the Government to specify precisely to Parliament, as justification for the request presented by it, the purpose of the measures which it proposes to adopt by ordinance as well as the scope of its intervention, it does not require the Government to inform Parliament of the substance of the ordinances that it will adopt under the terms of such authorisation;

80. Considering that the authorisation granted to the Government under the first sentence of paragraph I of Article 14 relates to "the measures necessary in order to adapt the general corpus of applicable legislation, with the exception of the Civil Code, in order to draw the consequences of the application to same-sex spouses and parents of the provisions applicable to spouses and parents of the opposite sex"; that the authorisation granted to the Government under the second sentence of paragraph I of Article 14 has the objective of enabling the same legislative amendments, with the necessary adaptations, in Mayotte, in the overseas territories falling under Article 74 of the Constitution, in New Caledonia and in the French Southern and Antarctic Territories; that these authorisations have the objective of implementing changes to terminology and associated coordination; that due to this limited objective, notwithstanding that they apply to the general corpus of legislation as a whole, with the exception of the Civil Code, these authorisations are defined with sufficient precision in order to comply with the requirements of Article 38 of the Constitution; that they cannot release the Government from the requirement to comply with rules and principles of constitutional standing when exercising the powers vested in it;

81. Considering third that the provisions on coordination introduced by Article 13 of the Law referred as Article 6-1 into the preliminary Title to the Civil Code, according to which marriage and adoptive filiation shall entail the same effects, rights and obligations recognised by law, irrespective of whether the spouses or parents are of the same or the opposite sex, are of general application; that nevertheless, the Government has requested that it be authorised to adopt by ordinance the necessary measures in order to adapt the general corpus of applicable legislative provisions, with the exception of the Civil Code, with the goal of altering the wording of certain legislative provisions in order to draw, in an express and comprehensive manner, the consequences of the opening of marriage and adoption to same-sex couples, and accordingly enhancing the quality of the law; that under these conditions, the objections alleging that on the one hand the formulation of the authorisation is not sufficiently precise, and on the other hand that the objective of constitutional standing that the law should be accessible and intelligible opposes the immediate application of the law must be rejected;

82. Considering that according to all of the above, Article 14 must be ruled constitutional;

– THE VALIDATION OF MARRIAGES CELEBRATED PRIOR TO ENACTMENT OF THE LAW:

83. Considering that pursuant to Article 21 of the Law referred: "Marriages contracted between individuals of the same sex prior to the entry into force of the present Law shall be recognised in France with regard to their effects in respect of spouses and children, subject to compliance with Articles 144, 146, 146-1, 147, 161, 162, 163, 180 and 191 of the Civil Code. Such marriages may be registered under the conditions laid down in Articles 171-5 and 171-7 of the Code. They shall have effect in respect of third parties from the date of registration";

84. Considering that, according to the applicants, these provisions have the object of validating marriages celebrated prior to the enactment of the new law, in breach of the law applicable at the time, thereby creating "manifest legal uncertainty"; that this validation, the scope of which is not strictly defined, does not comply with a sufficient reason of general interest; that these provisions moreover run contrary to the objective of constitutional standing that the law should be intelligible and accessible;

85. Considering that, according to the preliminary works, in enacting the provisions of Article 21, the legislator intended to specify the terms applicable to the recognition and registration of marriages celebrated abroad prior to the entry into force of the Law referred; that according to the state of law prior to the promulgation of the Law, marriages celebrated abroad between a French national and the national of a state which granted same-sex couples the right to marry were not recognised under French law; that the recognition under Article 21 of marriages celebrated abroad between two individuals of the same sex prior to the entry into force of the Law along with the possibility to register such marriages are conditional upon compliance with the laws on the validity of marriages laid down by Articles 144, 146, 146-1, 147, 161, 162, 163, 180 and 191 of the Civil Code; that moreover, the registration of such a marriage is subject to controls by the diplomatic or consular authorities and the public prosecutor under the conditions laid down by Articles 171-5 and 171-7 of the Civil Code;

86. Considering that, on the one hand, these provisions do not violate any legally acquired right; that on the other hand, the legislator was at liberty to create an exception to the rule according to which the validity of a marriage is to be assessed with reference to the time when it was celebrated, by providing that marriages celebrated abroad prior to the promulgation of the Law are to have effect in France; that the contested provisions are not affected by any form of unintelligibility;

87. Considering that according to the above, Article 21 must be ruled constitutional;

– THE APPLICATION OF THE LAW OVERSEAS:

88. Considering that the applicants challenge Article 22 which renders the provisions of Articles 1 to 13 and 21 of the Law referred applicable in New Caledonia, the islands of Wallis and Futuna and in French Polynesia; that this extension, which was not preceded by a consultation of the deliberative assemblies of these territories, violates Articles 74 and 77 of the Constitution; that the authorisation to introduce legislation by ordinance provided for under sentence 2 of paragraph I of Article 14 in order to enable legislative provisions other than those contained in the Civil Code to be adapted in the overseas territories falling under Article 74 of the Constitution and in New Caledonia enable the consultation of the deliberative assemblies of these territories to be deferred and, moreover, to deprive the scope of consultation of all meaning, as it can only relate to the provisions drawing the mechanical consequences of the Law referred;

89. Considering that the provisions of the Law referred which are applicable in New Caledonia, the islands Wallis and Futuna and in French Polynesia relate to the status and capacity of individuals; that these matters fall under the competence of the state; that the provisions of the law referred do not have the effect of altering the rules applicable to individuals subject to a personal status regime other than civil status under ordinary law;

90. Considering that, since the legislator rendered the provisions of the Law referred applicable without associating them with adaptive measures relating to the specific organisation of the territories concerned, the procedure for the consultation of the deliberative assemblies of these territories was not mandatory; that accordingly, the objection relating to the failure to consult these deliberative assemblies must be rejected;

91. Considering that Article 22, which does not breach any other requirement of constitutional law, must be declared constitutional;

92. Considering that there are no grounds for the Constitutional Council to raise any other question of compatibility with the Constitution ex officio,

HELD:

Article 1. – Articles 1, 7, 8, 11 to 14, 19, 21 and 22 of the Law providing for same-sex marriage are constitutional.

Article 2. – Subject to the reservation stated in recital 53, Articles L. 225-2 and L. 225-17 of the Code of Social Action and Families are constitutional.

Article 3. This decision shall be published in the Journal officiel of the French Republic.

Deliberated by the Constitutional Council in its session of 17 May 2013, sat on by: Mr Jean-Louis DEBRÉ, President, Mr Jacques BARROT, Ms Claire BAZY MALAURIE, Ms Nicole BELLOUBET, Mr Guy CANIVET, Mr Michel CHARASSE, Mr Renaud DENOIX de SAINT MARC, Mr Valéry GISCARD d'ESTAING, Mr Hubert HAENEL and Ms Nicole MAESTRACCI.