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Same-sex marriage bill clears German upper house

July 7, 2017

Germany's equal marriage bill has been approved in the Bundesrat, meaning the president can now sign it into law. However, one other legal challenge - concerned with the wording of Germany's constitution - is likely.

A rainbow flag flies in front of the Brandenburg Gate in Berlin
Image: picture-alliance/ZUMA Wire/O. Messinger

A vote was not necessary in the upper house of Germany's parliament, the Bundesrat, on Friday, because no state challenged the draft legislation. The original proposal for the law - and a large part of the initial pressure on Angela Merkel's government to act - had come from the Bundesrat, where "marriage for all" ("Ehe für alle") twice won majority support.

The state premier of Rhineland Palatinate, Social Democrat Malu Dreyer, said she was happy "that our persistent fight has succeeded." Rhineland Palatinate was the state to bring the proposal to a vote twice in the Bundesrat, in 2013 and 2015.

However, Germany's most populous state, North Rhine-Westphalia (NRW), did not take part in the session because of friction on the issue within its newly-formed coalition government between the Christian Democrats and the Free Democrats. FDP party chairman Christian Lindner said on Twitter that his senior coalition partners did not wish to participate. 

"A pity that NRW has to sit out in the Bundesrat on marriage for all," Lindner's tweet reads, signed with his initials to indicate he had written it himself. "The FDP in NRW would be in favor, but [state premier] Armin Laschet and the CDU in NRW are against."

The election pledge that swiftly became law

The lower house, the Bundestag, passed the motion last Friday. It was hurried to the floor after election campaigning quickly morphed into snap legislation. Once Chancellor Angela Merkel signaled in an interview that her Christian Democrats would not block gay marriage after September's elections, her Social Democrat rival Martin Schulz instead called for an immediate vote in parliament.

Merkel did not seek to stop the vote but voted against; the measure passed comfortably with almost unanimous support from other parties, plus a contingent of the chancellor's conservatives.

'Marriage for all' - Merkel's question of conscience

Bavaria's conservative Justice Minister Winfried Bausback criticized the "surprising and hurried process" in the lower house, saying it was unworthy of the subject. He also told the Bundesrat that Bavaria's Christian Social Union (CSU) continued to oppose the measure, and planned to call on the Constitutional Court to check whether the new law conforms with the constitution. 

Bavaria's government and other members of the CDU/CSU alliance argue that the new law will require changes to the wording of Germany's constitution. Bausback said that the current wording describes marriage as "a lifelong partnership between a man and a woman; the basis for a family in which children are raised by their biological parents." 

Constitution set for a rewrite?

Whether or not German law currently defines marriage as such is subject to political debate. 

The state premier of Baden Württemberg, Winfried Kretschmann of the Greens, argued that no changes to the constitution are necessary. According to his interpretation, German law never explicitly linked marriage with having a family.

Article 6 of Germany's basic law has the heading "Marriage - Family - Children," and the first item states: "Marriage and family shall enjoy the special protection of the state." Whether or not this constitutes an explicit link between the concepts of marriage and reproduction could be the subject of a case at the Constitutional Court.

Read: Same-sex marriage in Germany: An issue for the court?

The Bundesrat also approved a string of other draft laws in Friday's session. These included new laws designed to prevent or not recognize child marriages, a database to track sperm donors, changes to pension rules, a rule allowing the government to use so-called "trojans" to monitor criminal suspects' computers, and the abolition of a law against "insulting" foreign heads of state.

msh/dc (AFP, dpa, epd, KNA)

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