Owe have well forgotten today that in the midst of the HIV epidemic, when AIDS was a fatal disease that we did not know how to control, the Court of Cassation refused in two successive judgments (1989, 1997) to consider two homosexuals living together like the “concubines” on the grounds that the category would aim at “married life” and that only couples who could marry could claim such a life.
This very ideological interpretation, linking the social fact of cohabitation to the statutory possibility of marriage, has never existed in the countries of common law, more pragmatic. She explains why there was, at the time of the vote for the civil solidarity pact (pacs), “two mixed institutional issues” : guarantee social and fiscal rights for homosexual couples, who urgently need them, but also change the centuries-old definition of the couple in civil law, which meant bringing homosexuality into the realm of kinship.
I would like to recall here the major role, too little known today, which was played by Robert Badinter during these debates.
Four positions that clash
Indeed, how can we respond to the case law of the Court of Cassation? By assuming a redefinition of the couple in law? By going around it? By refusing it? We do not know enough that on this subject not only two camps clashed, the “propacs” and the “antipacs”but four positions.
1 – A position of denunciation of the link: no rights must be granted. It stems from open hostility to homosexuality. This is the solution for all those who wish to maintain homosexuality as an anomaly, a sin, a pathology that should be treated and to which we should at most have compassion. The MP Christine Boutin and the representative of the Church of France for the PACS, Tony Anatrella, priest and psychoanalyst, are the two figures who embodied this position in its offensive version. It brings together a large part of the right who mobilized against the PACS.
2 – A symbolic deletion position of the link : real social rights, but no recognized relationship. It can be interpreted as a pragmatic position of avoiding conflicts, but also as the refusal of any publicity of homosexuality: it is the solution of common interest pact (PIC), developed by the lawyer Jean Hauser, with the claimed idea of saying no to any symbolic recognition of the same-sex couple. This path indirectly confirms the case law of the Court of Cassation defining the couple as necessarily of different sexes. This is the position of part of the right, the most liberal, which mobilized against the PACS.
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