Thursday, February 24, 2011

Hit and Miss

France does something right!

France’s Constitutional Council Upholds Marriage as Between One Man and One Woman

6. Whereas, first, Article 66 of the Constitution prohibits arbitrary detention and entrusts to the judicial authority, as provided by law, the protection of individual liberty; the freedom to marry, a component of personal freedom, arises from Articles 2 and 4 of the 1789 Déclaration des droits de l’homme et du citoyen (Declaration of the Rights of Man and of the Citizen); the challenged provisions do not affect personal liberty, and therefore, the complaint of violation of Article 66 of the Constitution is irrelevant;

7. Whereas, second, the freedom to marry does not restrict the legislature’s jurisdiction under Article 34 of the Constitution to establish conditions for marriage so long as they are not contrary to other constitutional principles;

8. Whereas, on one hand, the right to lead a normal family life is founded in the tenth paragraph of the Preamble to the Constitution of 1946, which provides: “The Nation shall provide the individual and the family with the conditions necessary for their development”; the last paragraph of Article 75 and Article 144 of the Civil Code do not preclude the freedom of same-sex couples to cohabit under the conditions defined by Article 515-8 of the Code or to benefit from the legal framework of a civil union (PACS) governed by Articles 515-1 et seq.; the right to lead a normal family life does not necessitate a right to same-sex marriage, and consequently, the challenged provisions do not implicate the right to lead a normal family life;

9. 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; 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;

10. Whereas it follows from the foregoing that the complaint of infringement of the freedom to marry must be rejected.
From the Blog Turtle Bay and Beyond, International Law, Policy, and Institutions (Link)

and Germany misses the mark:

Germany: Radical Lesbian Gender-Theorist appointed to serve at Constitutional Court

It is pretty much as if Margaret Sanger, Marie Stopes, or Judith Butler had been appointed as Justices for the US Supreme Court: since the beginning of this month, Germany’s Constitutional Court (Bundesverfassungsgericht, BVG) features among its judges a radical gender-theorist with absolutely no prior experience as a judge. Her name is Susanne Baer, and she is living in a lesbian relationship.

Mrs. Baer has no prior experience whatsoever as a judge, nor as an attorney. Her qualification for the job is that for eight years she has served as Professor for “Feminist Legal Theory” at Humboldt University, Berlin. Until 2010 she also was the Director of the “GenderKompetenzZentrum” (Center for Gender Competence), an Institute that was established at Humboldt University to promote the theory of “Gender-Mainstreaming”. The basis for her swift academic career was thus not the promotion of knowledge and insight, but of radical ideologies. I write “ideologies”, because, closely following the Marxist tradition, she views law as a tool to make politics rather than as something that must correspond to an outward reality. As she once wrote, “law is a means to construct reality”….

The task of a judge is to apply laws to cases. Mrs. Baer, it must be expected, has neither been trained to do that, nor does she want to. With all due respect: given her career as an ideologue-dressed-up-as-academic, it is hardly likely that she will not abuse her judicial power in order to turn her radical theories into law. After all, that is precisely what her political masters have nominated her for…

From the Blog Turtle Bay and Beyond, International Law, Policy, and Institutions (Link)

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