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France's Ruling on Gay Couple's Wedding Tests Treaty with Morocco

France’s top court validates same-sex union between a French man and his Moroccan partner, contradicting an earlier agreement signed between the countries.
Image by Aiky Ratsimanohatra/Flickr

A French court has ruled that a French-Moroccan gay couple has the right to be married in France, despite a 1981 treaty signed between the countries essentially stipulating that couples in bi-national relationships can't be wed if their country of citizenship does not allow gay unions.

Same-sex marriage is not recognized in Morocco and homosexuality is a criminal offense, punishable by prison time.

But France's highest appeals court ruled Wednesday that the freedom to marry was a fundamental right in France, therefore superseding any prior agreement or "convention" signed between Morocco and France.

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The ruling also contradicts France's 2013 same-sex marriage legislation, the Taubira law, which outlined that such "conventions take precedence over the law."

France currently has 11 bilateral "conventions" in place that provide that each member of a married couple must comply with the laws of their country, which basically excludes marriage equality on the basis of nationality. Such treaties have been signed with Poland, Bosnia-Herzegovina, Montenegro, Serbia, Kosovo, Slovenia, Tunisia, Algeria, Laos, Cambodia, and Morocco.

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The case this week involved Dominique, a Frenchman in his 50s, and Mohammed, a Moroccan student in his 20s. The pair had already performed a civil union ceremony in March 2013, and were due to marry in September of that year in the southeastern town of Chambéry. But the local prosecutor opposed the wedding and it was cancelled at the last minute, prompting the couple to bring their case before the regional court. The regional court lifted the ban on the marriage, a ruling later validated by Chambéry's appeals court.

The couple, whose last names have not been revealed, were married last November, but the union was not validated for over a year while the public prosecutor's office appealed to the French Court of Cassation, France's top appeals court. Wednesday's decision is being hailed as a landmark decision that has the possibility to pave the way for other couples previously denied marriage rights to legalize their unions.

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In delivering its decision, the Court of Cassation said that, "Same-sex unions are a fundamental freedom, which cannot be hindered by a convention signed between France and Morocco, if the prospective Moroccan spouse has a substantial connection with France."

Alice Meier Bourdeau, an attorney who advised the couple during the proceedings, explained that the decision arose from a loophole in the French-Moroccan treaty. She pointed out a clause in the agreement stipulating that, "National law can be ignored when it is incompatible with public order in France or Morocco."

"Public order," also known as "public policy," is the name given to all mandatory rules protecting the fundamental values of French society, Meier Bordeau said. In the case of Dominique and Mohammed, the appeals court recognized that the couple's right to marriage was intrinsic to their rights and freedoms, as outlined by the notion of French "public order."

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Attorney Patrice Spinosi, who represented the French state ombudsman in this case, said in a statement following the decision that, "The ombudsman applauds this decision by the Court of Cassation, which guarantees marriage rights to same-sex couples without any discrimination based on nationality or sexual orientation."

A month before the court's decision, 78 French lawyers, law professors and legal experts signed an op-ed in French daily Le Figaro warning that a favorable decision for Dominique and Mohammed would compromise Moroccan sovereignty.

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"Can we, through the practice of judicial neocolonialism, impose our views on countries France considers its friends and who remain legitimately attached to marriage, the union between a man and a woman?" The open letter reads.

Meier Bourdeau refuted the accusation of neocolonialism, arguing that the marriage will only be recognized in France.

"It is very dishonest to put it in those terms," she said. "This decision in no way forces Morocco to recognize the marriage. The only thing the law says is that in France they have the right to marry."

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Pierre Vermeren, a history professor at the University of Paris I, told VICE News that civil law in Morocco is based on religious law, and that while jail sentences are rarely handed out, homosexuality remains an offense.

Meanwhile, diplomatic relations between France and Morocco currently remain tense. Judicial cooperation between the two countries stalled last year following a row arising from French lawsuits filed against Morocco's intelligence chief, Abdellatif Hammouchi, over his alleged involvement in the torture of an activist jailed in 2013.

Vermeren said the Hammouchi incident is at "the heart of diplomatic hostilities" between the two countries. France relies on Moroccan cooperation, particularly on safety issues, and "cannot afford a long-term row" with its ally, he added.

Speaking to the French National Assembly on Wednesday, French Prime Minister Manuel Valls called for the two nations to reconcile their differences, saying, "France is Morocco's friend and Morocco is France's friend… We must each contribute, and move beyond this episode, which appears to be based on a number of misunderstandings."

Valls did not mention the appeals court ruling on Dominique and Mohammed's marriage.

Follow Mélodie Bouchaud on Twitter: @Meloboucho

Image via Flickr