We are all French… And they are the nationalists!
This paper examines the mobilization of national references in same-sex marriage debates in France between 2011 and 2014. Unlike Bruno Perreau, Camille Robcis or Eric Fassin, it does not look at the interactions between the regulation of kinship and the production of the French nation, but analyzes the role of the nation as a central symbolic and discursive repertoire in recent French debates about marriage equality. Indeed, both the nation and national symbols were invoked by all the actors involved. However, these actors were not pursuing the same goals, and they did not use national references to serve the same purposes.
This exercise aims at complexifying recent debates on sexual nationalism. Going beyond Puar’s restrictive and US-centric notion of homonationalism, it highlights the pervasiveness of national references in French debates as well as the complexity of its intersections with sexual politics. Reminding Jane Jenson’s concept of ‘universe of political discourse’ (1989), it confirms the hegemony of the national frame in the French public sphere and its positioning as a crucial site of struggle. All actors share some of its basic assumptions and have to position themselves within that universe, which functions as a political grammar. At the same time, they engage with it in different ways and contribute to transform what is meant by the nation in contemporary France. Research must therefore look at the diverging and conflicting representations of the nation at play in these debates before assuming how they interact with sexual politics. As will be shown, the French case is particularly fascinating as it combines in a single debate several of the definitions suggested in the literature.
After a brief literature review, this paper proceeds in three steps, which are chronologically presented as three acts of the same play. First, I look at the controversies sparked by the 2011 poster of the Marche des Fiertés within LGBT communities. Second, I analyze same-sex marriage debates between 2012 and 2014. Third, I discuss actions launched by Belgian citizens to support French same-sex marriage defenders. These three cases display different connections between nationalism and sexual politics, and invite us to rethink current debates on homonationalism.
Immigrants, Empire, and Gay Marriage: A Comparison of the American and French Paths to Legalization
The very recent decisions by the United States Supreme Court on gay marriage provide an opportunity to compare the path to legalization of gay marriage in France and the United States. Dating back to the revolutionary era, the two nations have vied more or less directly in a longstanding contest for leadership status in the area of human rights. As of late April 2013, France has legislated gay marriage and adoption as matters of national law (by way of a reform of the Civil Code). Not to be outdone, the United States, acting through judicial rather than legislative channels, has followed suit with the Windsor decision striking down the Federal Defense of Marriage Act. And yet there remains no such thing as a national “right to gay marriage” in the United States. Differences in the French and American traditions of separation of powers, federalism, and of equality are clearly central to these contrasting yet convergent paths.
In order to get a handle on what is a very large and complex task of comparative analysis, this paper proposes to focus on the recognition of same-sex marriages between nationals and foreigners. Under the Windsor decision and its implementation by the U.S. Department of Homeland Security, the American federal government now appears to be committed to equal treatment of heterosexual and same-sex marriages between American and foreign nationals. By contrast, the National Assembly’s 2013 reform of the French Civil Code introduced a remarkable set of conflict of laws provisions. Among the newest additions to the Civil Code, these provisions have a curiously anachronistic character to them that seems to hearken back unmistakably to the French colonial experience. One provision makes the “conditions de fond” of a marriage (a phrase that denotes the rules, unrelated to sexual orientation, governing eligibility for marriage generally) subject to the “personal law” of each spouse – which is to say, the national law of the country of which that spouse is a citizen. Another provision qualifies the apparent limitation on the scope of same-sex marriage for immigrants and foreigners in France by permitting two same-sex persons to contract marriage if, for at least one of them, either her “personal law” or the law of the nation in which she legally resides permits same-sex marriage.
To whom are these provisions meant to apply? One theory is that sans papiers are to be denied the benefits of the legalization of same-sex marriage. That seems true at the level of statutory law, though French judicial doctrine holds otherwise, on the grounds that marriage is a “fundamental right.” Another answer evokes the experience of empire and religion. Under the terms of a May 29, 2013 implementation memo issued by the Garde des Sceaux (Minister of Justice), same- sex marriages between French nationals and the nationals of eleven foreign nations– including Morocco, Tunisia, Algeria, Cambodia, and the former Yugoslav republics – will not be recognized as a matter of France’s treaty commitments with these nations. This contrast with the American experience speaks to the specifics of France’s colonial and immigrant past, and reveals the intersections between sexuality, empire, and national identity that are obscured by moral or institutional readings of rival Franco-American gay marriage narratives.
On the one hand, the notion of a “personal law” has an abstract or universal character to it: that is, the category of personal law exists because, in the contemporary world, people cross borders and establish loving relationships with persons of different nations. But contemporary French multicultural diversity and the rise of France as a nation of global culture are very closely linked to the colonial experience. In particular, the new marriage regulations reflect a will to transpose onto the contemporary French demographic the differential regulation of French and colonial subjects, in places like Algeria, Tunisia, and Morocco, by either French or Muslim (or Jewish) “personal law.” Religion and religious difference are therefore at the heart of the new conflict of laws rules, as one might expect in an area of law that involves the intersection of sexuality, national borders, and the Catholic sacrament of marriage. In this way, the legalization of same-sex marriage has paradoxically revealed the limitations of “laïcité” as the operative norm or theory of French marriage law.
But if the contemporary same-sex marriage regime has inherited this aspect of “la fracture coloniale,” the dynamics of the new conflicts rules remain ambiguous. For one thing, the definition of a “resortissant” of a foreign country (the term used in the regulations issued by the Garde des Sceaux) is unclear. Second, the motivation for the exclusion of certain foreign “resortissants” from the benefits of same-sex marriage has a double-edged character as an instrument of both domestic and foreign policy. While the treaty commitments seem to embody a kind of religious “exemption” from the application of French universal law (a purportedly mandatory deference towards the governments of former French colonies in which Islam is the dominant religion and where same-sex marriage is illegal), the actual language of these agreements points instead to the protection of French citizens living overseas as the operative impulse. The 1962 Evian accords that concluded the French- Algerian war of independence, for example, provide that French nationals who remained in Algeria after 1962 would retain a French “civil” and “personal” status that Algerian authorities would be required to “respect and apply.” (The 1957 agreement on Tunisian independence contains similar provisions.)
In this way, the new conflicts rules seem designed to shield a preexisting, extraterritorial French heterosexual marriage regime – one that, by virtue of applying outside of France’s present-day boundaries, is itself another legacy of the imperial experience. In theory, that protection could extend to same-sex marriages contracted between French nationals living in foreign nations where same-sex marriage is prohibited. But the treaties in question, which date back to a period before the rise of the same-sex marriage movement, were clearly not adopted with this purpose in mind, nor is it obvious that the 2013 conflicts rules were designed to that effect.
I conclude with a set of observations about the new American same-sex marriage regime in light of the French comparison. On the one hand, the notion of “religious” exemptions from civil laws is a very American thing, a familiar part of free exercise doctrine in the United States since well before the Religious Freedom Restoration Act of 1993. On the other hand, the absence of a national marriage law means, by definition, that American same-sex marriage law has no parallel to the French conflicts rules. American law embodies no deference to foreign jurisdictions in which same-sex marriage is illegal. It seems to presume, at least in the aftermath of Windsor, that immigrants to the United States will be able to partake of the benefits of American law irrespective of the former colonial relationships in which their nations of origin happen to be entangled. That presumption, in turn, can itself be seen as an act of a specifically American imperial legal imagination. But it is a vision of empire unencumbered by the particular territorial commitments, fractures, and anxieties that seem to animate the French regime.