What are the realities of marriage
Council of States says yes - a historic moment - marriage for everyone is a reality
"Social change has now also reached the Council of States," say the initiators. The decision was tight - and after 7 years.
Almost exactly seven years ago, on December 5, 2013, Kathrin Bertschy from the Green Liberals submitted a proposal. It had the prosaic title "Marriage for All" and the number 13,468.
On Tuesday, December 1, 2020, the President of the Council of States Alex Kuprecht looked around for the last time. «Are there requests to speak? That doesn't seem to be the case. So decided. We come to the final vote. "
Uff. Seven years! The content-related discussion was not that exhausting, says Bertschy after the vote in the Council of States. "It was troublesome how various circles repeatedly postponed and delayed the discussion."
Does the constitution need to be changed?
These "different circles" tried to do this right up to the end. After the National Council's clear approval in the summer ("That was the best moment in the past seven years," says Bertschy), a dispute arose in the Council of States over whether marriage required a constitutional amendment for everyone or whether a simple law would suffice - like it did the National Council had already decided.
A regulation in the constitution would have meant a further delay of the submission by around one and a half years - and a greater hurdle for a referendum (keyword: more cantons). "Personally, I want marriage for everyone, and quickly," said Heidi Z’graggen (CVP), a member of the Uri Council of States, "but out of respect for the constitution, this wish has to take a back seat."
Z’graggen had already spoken out in favor of an amendment to the constitution in the preliminary consultative commission. In doing so, it relied on an expert opinion by Isabelle Häner, a Zurich law professor. In it, Häner argued that the constitutional concept of marriage is neutral (“The right to marriage and family is guaranteed”, it says there), but the materials suggest that marriage as an institute is intended solely for men and women. Ergo, marriage absolutely needs a constitutional amendment for everyone (read here: «The secret document»).
Arguing with Scalia
Just like Häner and Z’graggen, men from conservative cantons argued in advance in the Council of States. All in advance Beat Rieder (CVP) from Valais, who went back to the 1870s in his remarks and tried to deduce from the history of the concept of marriage in the federal constitution that it must be understood as heterosexual.
Rieder used (it must have been a first for the Council of States) the argumentation of Antonin Scalia, the arch-conservative judge at the US Supreme Court who died in 2016. Scalia, an opponent of abortion, was a supporter of "originalism" and interpreted the constitution literally: The decisive factor is not how the constitution is interpreted according to today's standards, but what intentions its authors at the time had pursued. Therefore, and thus Rieder ended his state-political colloquium again in the here and now, a change in the constitutional text is imperative in order to anchor marriage for everyone in today's law.
This view of the constitution is, you guessed it, controversial among legal scholars. Andrea Caroni (FDP, AR) recalled during the debate that until the 1980s, the patriarchy with the man as the “head of the family” was considered. The abolition of this model was a much greater interference in the coexistence of people - and yet could only be regulated in the civil code. "Today, however, is a brush renovation."
«What word would you like to add to the constitutional text? He is perfect the way he is today. "Lisa Mazzone (GE, Greens)
The left, allied with liberalism on this issue, sees it the same way. Marriage for All expands and supports the institute of marriage, said Lisa Mazzone (Greens, GE). «And anyway: what word would you like to add to the constitutional text? He is perfect the way he is today. "
The point of view of Mazzone and Caroni narrowly prevailed in the end. There is still a difference to the National Council in the question of sperm donation for female couples. According to the Council of States, joint parenthood would only apply from birth if couples use Swiss sperm banks. In addition, there is still no regulation for private sperm donation. "That was a step in the right direction today," says SP National Councilor Tamara Funiciello. "But the fact is that lesbian women are not equal."
Twenty years later
Kathrin Bertschy hopes that this inequality will be eliminated this December. And then: done! It was seven years for Bertschy, for others it was even more. More than twenty years ago, Ruth Genner, former National Councilor of the Greens, submitted a first proposal for marriage for everyone and clearly failed. Since then, society and politics have fundamentally changed on this socio-political issue. "And today this change has even reached the Council of States," says Bertschy. "Even if pretty tight."
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