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Anna Katharina Mangold

PD Dr. Anna Katharina Mangold researches and teaches public law, European law and legal philosophy at the University of Frankfurt. Her main areas of focus include anti-discrimination law.

In June 2017, the Bundestag voted to open up marriage to same-sex couples. Anna Katharina Mangold describes historical milestones in the struggle for equality in Germany and outlines questions that are still open.

Wedding couple as decoration on a wedding cake. (& copy picture-alliance, Sven Simon)

When Marriage for All found a majority in the vote in the Bundestag in June 2017, which was a great success in the decades-long struggle for equal rights for same-sex lovers. The road to this crucial vote was long and extremely arduous.

Criminal liability of male homosexuality (§ 175 StGB)

Since the imperial era, same-sex intercourse between men was threatened with punishment in Section 175 of the Criminal Code. The norm was tightened during the Nazi era. Men with the "pink triangle" were mistreated and killed in concentration camps. Although less publicly visible, lesbian women have also experienced persecution and murder.

The young Federal Republic did not distance itself from Section 175 of the Criminal Code. For this reason, too, a socially free climate for homosexual people could not arise. The first struggle for equal rights was therefore the abolition of this penal norm. The Federal Constitutional Court, however, declared male homosexuality to be criminal in 1957 as constitutional, i.e. compatible with the Basic Law (GG).

The GDR also retained criminal liability. At the same time, court rulings have made generous use of recruitment options in proceedings since the 1950s. Nevertheless, homosexuality remained a taboo subject in the GDR. It was not until the 1980s that the first groups were formed in church contexts that advocated equality. As early as 1968, one year before the FRG (!), The GDR decriminalized consensual same-sex intercourse between adult men, but retained the criminality of intercourse with minors. [1] Intercourse with under 21-year-olds (from 1964: under 18-year-olds) and the exploitation of dependency relationships remained punishable. The lifting of the total ban with the criminal law reform in 1969 nevertheless allowed the gradual formation of an open political gay movement in the 1970s. In 1994, Section 175 of the Criminal Code was finally deleted without replacement in reunified Germany.

Origin of the gay movement and the first demands for marriage to be opened

Some same-sex couples tried to secure legal protection for their partnership through adoption. In the 1980s, the marriage ban for same-sex couples was increasingly criticized. After Denmark was the first country in the world to introduce a registered civil partnership in 1989, the Gay Association in Germany (SVD), today the Lesbian and Gay Association of Germany (LSVD), also called for marriage to be opened up in 1990. In cooperation with the Federal Association of Gay Lawyers (BASJ), the SVD developed a draft law for the marriage of people of the same sex.

In August 1992, around 250 same-sex couples called for a marriage ("Aktion Standesamt"). The question of the admissibility of such a same-sex marriage reached the Federal Constitutional Court through legal action: Did the Basic Law also entitle same-sex couples to marry? The competent chamber did not accept the appeal for decision [2] and argued that "the gender difference is one of the defining characteristics of marriage", but left a back door open in the reasoning if there were "clues for a fundamental change in the understanding of marriage in the future the sense that the difference between the sexes would no longer have any formative meaning ". It was now a matter of actively bringing about "a fundamental change in the understanding of marriage". An important step in this direction was taken in 1994 with the deletion of Section 175 of the Criminal Code. In Hamburg, due to a law from 1999, same-sex partnerships could be entered in a "partnership book" for the first time. However, "neither rights nor obligations" resulted from this entry.

The Life Partnership Act 2001

Mainly at the instigation of the Bündnis 90 / Die Grünen party, the red-green federal government succeeded in passing the so-called Life Partnership Act (LPartG) in 2001. This legislative proposal originally comprised two parts: The LPartG granted the right to enter into a registered civil partnership without, however, granting all rights of marriage (so there was no common right of adoption). The important second part, the supplementary law (LPartErgG), provided for far-reaching adjustments, for example in tax and civil service law. The Union parties blocked the LPartErgG, which had to be approved by the Federal Council, so that same-sex couples were initially denied certain rights to follow-up. With the LPartG, a legal institute for same-sex couples was introduced for the first time.

The three Union-led federal states of Bavaria, Saxony and Thuringia sued the LPartG. In doing so, they were based on the wording of Article 6 (1) of the Basic Law. This places marriage and the family "under the special protection of the state order". According to the three plaintiff federal states, this also includes a distance requirement from all other forms of legally constituted partnership. Therefore, no legal institution should be introduced that is similar to a marriage. In its fundamental decision of 2002, the Federal Constitutional Court opposed this view, very close with 5: 3 votes. The civil partnership, according to the majority of the Senate, is an "aliud" to marriage, something completely different. Therefore, the civil partnership is also not a danger for opposite-sex marriages: "The extent of legal protection and promotion of marriage is not reduced in any way if the legal system also recognizes other forms of life that cannot compete with marriage as a community of opposite-sex partners. It is also not constitutionally justifiable from the special protection Inferring from marriage that such other partnerships are to be structured at a distance from marriage and to be provided with lesser rights. "[3]

This paved the way, the Civil Partnership Act was constitutional, and gay and lesbian couples could "partner", as the equivalent of "getting married" was then called.

The case law of the BVerfG on the unequal treatment of civil partnerships and marriage

In the years after 2002, same-sex couples brought numerous persistent unequal treatment before the courts, which resulted primarily from the failure to adapt other laws because the LPartErgG had not been passed. However, several chambers of the Federal Constitutional Court refused to harmonize the legal situation for same-sex couples. According to Article 3, Paragraph 3, Clause 1 of the Basic Law, nobody may "be disadvantaged or preferred because of their gender". In 2015, Chief Justice Roberts succinctly stated in the oral hearing of the US Supreme Court on the opening of marriage in the US legal system that it was obvious to understand discrimination on the basis of sexual orientation as discrimination "because of gender":

"I mean, if Sue loves Joe and Tom loves Joe, Sue can marry him and Tom can't. And the difference is based upon their different sex. Why isn't that a straightforward question of sexual discrimination?"[4]

After the introduction of the LPartG, a conservative, formalist reading was initially widespread. This stated that it was not the sexual orientation of people that was the reason why partners and spouses had different rights, but only the different personal status: "partnered" or "married". Therefore it is not a question of discrimination because of the gender of the partner or the sexual orientation of the partner. The 1st Chamber of the Second Senate of the Federal Constitutional Court argued repeatedly, for example on the family allowance under civil service law in September 2007, in three identical resolutions in November 2007 and in May 2008. In other words, this line of jurisdiction claimed that gays and lesbians do get married could; From the perspective of lesbians and gays, this view only had the catch that the potential spouse still had to be of a different gender than they themselves.

The decisive change in perspective of the Federal Constitutional Court

It was not until 2009 that something about this formalistic interpretation changed. The Federal Constitutional Court set the course again. While the court initially took the difference between civil partnerships and marriage as its starting point, as shown, it now chose a different perspective in the decision on survivors' benefits for civil partners [5]. The LPartG typically covers same-sex people. They would be disadvantaged compared to people of the opposite sex because only they could enter into a legally better off marriage. The Federal Constitutional Court has now come to the conclusion that the "unequal treatment of married couples and registered partners is linked to sexual orientation". Therefore "considerable differences" between marriage and civil partnership are necessary "in order to be able to justify the specific unequal treatment". Because both marriage and partnership are "permanent, legally established forms of partnership".

The court changed the original question completely. Previously the question was: Are there reasons that allow the civil partnership to be designed a bit like marriage? It was now asked: Are there reasons that can justify treating the civil partnership worse? If those who supported the civil partnership had to justify themselves beforehand, the court now demanded a declaration from those who wanted to deny the civil partnership the same rights as marriage. The court drew on the general principle of equality from Article 3, Paragraph 1 of the Basic Law and demanded: Anyone who wants to treat unequally must justify it with objective reasons.

Following this groundbreaking decision, the Federal Constitutional Court continued its new line of argument in a large number of individual decisions: in inheritance tax law, family allowances under civil service law, so-called successive adoption and spouse splitting. The complaining couples had achieved a great deal in the legal dispute, which sometimes lasted for years, with great personal and financial sacrifices.

Nevertheless: Where the Federal Constitutional Court had not yet decided, there were still differences between civil partnerships and marriage. Joint adoption of the partners remained inadmissible. The failure to adapt the legal system to the civil partnership also showed legal consequences in other areas: For example, the parents should be allowed to decide on the burial of the son instead of the civil partner if the communal cemetery statutes did not equate them with spouses. In all kinds of everyday situations, the lack of equality had such a legal and actual effect.

The opening of the marriage in 2017: five days in June

In the course of the 18th legislative period, there were legislative proposals for opening marriage, from the opposition parties and the Federal Council. The grand coalition of CDU / CSU and SPD postponed the proposals in the committees with the argument that there was still a need for advice. In total, the Legal Affairs Committee postponed the deliberations around thirty times. In the spring of 2017, the Bündnis 90 / Die Grünen parliamentary group attempted to oblige the majority of the Bundestag before the Federal Constitutional Court to deal with the content of the legislative proposals by means of an organ complaint, i.e. a constitutional lawsuit between constitutional organs. Even if the court made short work of this approach and declared it inadmissible, this initiative succeeded not least in making the opening of marriage an important issue in the election campaign, also because numerous other states (such as Ireland, which is dominated by Catholicism) had opened marriage in the meantime .

In the course of June 2017, all potential coalition partners of the Union parties, i.e. Bündnis 90 / Die Grünen, FDP and SPD, voted at their respective party congresses to make the opening of marriage a condition for entering into coalition negotiations. In this situation, the Union parties and the Chancellor candidate Angela Merkel came under pressure.

Then a remark by Angela Merkel in a conversation with BRIGITTE magazine on June 26, 2017 developed such a life of its own that the Bundestag walked the path to opening marriage at high speed within just five days: In the moderated conversation, Merkel spoke about it in response to a question from the audience , with the opening of marriage it should go "more in the direction of a conscience decision". According to parliamentary practice, this formulation normally refers to the fact that the so-called parliamentary group obligation is lifted and the members of the Bundestag are no longer allowed to vote according to their parliamentary group, but freely "according to their conscience".

The coalition partner SPD, Bündnis 90 / Die Grünen and numerous media took up Merkel's formulation in a publicly effective manner. After Merkel's statement, the SPD leadership was no longer bound by the old coalition agreement, but wanted to take up the Federal Council's existing draft law, which had previously been postponed, and make a final decision in the same week - the last week of the legislative session. The CDU and CSU made the decision to open marriage a day later a "question of conscience".

On Wednesday, the Legal Committee of the Bundestag dealt with the Federal Council's draft for the opening of marriage and recommended its adoption to the plenary. On Friday morning, June 30, 2017, at 8 a.m., the first thing that happened after the agenda was changed was an emotional debate about opening up marriage. In the roll-call vote that followed, the bill received 393 votes in favor, 226 votes against, 4 abstentions, and 7 votes were not cast. The law thus achieved the required majority. In addition to all MPs from the SPD, Bündnis 90 / Die Grünen and the Left, 75 Union MPs also voted for the law. The opening of the marriage was reached, confetti flew in the high house.

Section 1353 (1) sentence 1 of the German Civil Code (BGB) now defines as follows: "Two people of the same or different sex are married for life."

In the end, Bavaria decided not to go to Karlsruhe

After the celebratory mood in June 2017, the CSU in particular considered taking the opening of marriage to the Federal Constitutional Court. In its earlier case law, the court had repeatedly described marriage as the "union of a man and a woman to form a fundamentally indissoluble cohabitation", which, as a structural principle of marriage, was beyond the control of the legislature. The court also repeated this definition in more recent decisions on civil partnerships. The peace between the Christian sister parties may have helped prevent complaints during the election campaign. As an interim solution, the CSU commissioned two professors with a constitutional and a comparative law report. In particular, the constitutional expertise of January 2018 came to the conclusion that there was more to be said for the democratically legitimized legislature to be allowed to open marriage to same-sex partnerships without violating Article 6 (1) of the Basic Law. In the light of this report, the CSU, as the Bavarian state government, refrained from taking the law on opening marriage to Karlsruhe to the Federal Constitutional Court.

Open question: people without a legal gender entry

In the described haste of the legislative process, it remained open what applies to persons who are neither female nor male, i.e. for whom the gender entry is left open. The groundbreaking ruling of the Federal Constitutional Court on the third option requires for inter * persons in civil status law that either the gender entry can now be left open or a third designation other than male and female can be chosen. The new definition of marriage makes it explicitly clear that people of any gender can marry each other.

Necessary adjustments to the law of parentage are still pending. Here, highly controversial questions need to be resolved politically: Should the co-mother be automatically entered in the birth certificate as the "mother" of the child in addition to the woman giving birth? Should two gay men who have had a child abroad by a surrogate mother be entered as "fathers" in the birth certificate in Germany? The change in reproductive medicine and socially lived family relationships make it necessary to find viable and practicable legal solutions to these questions.