Same-sex Unions in Germany Survive Constitutional Challenge

By a five-to-three vote on Wednesday, Germany’s highest court rejected complaints by three conservative-led federal states that the country’s same-sex union law collides with family values enshrined in the constitutition. In doing so, the judges have given their imprimatur to the law passed in August 2001 that allows gays and lesbians to enter into "registered life partnerships" and enjoy many of the benefits of traditional marriage.

"A victory all the way" was how Volker Beck, Green party politician and driving force behind the partnership law, described the court’s ruling, which rejected out of hand the complaints brought forward by Bavaria, Saxony and Thuringia.

The three states had argued that same-sex partnerships would prove deleterious to marriages between a man and a woman, which enjoy special protections in the country’s constitution. The result, they argued, would be fewer children being born.

"We are already having problems due to the fact that we don’t have enough children," said Günter Beckstein, interior minister of Bavaria, said in an interview on German radio before the decision was handed down. "Add to that the fact that we no longer have a clear understanding of traditional marriage and family. We think that is wrong."

But the red-robed judges in Karlsruhe, where Germany’s highest court is based, wrote in their 70-page decision that "marriage is neither harmed nor encroached upon by the life partnership law." They ruled that marriage and registered partnerships are not directed at the same sections of the population and therefore do not stand in direct "competition" with each other.

New Rights

The same-sex partnership law, passed in August 2001, brought Germany closer to some of its European neighbors with regards to legal recognition of homosexual relationships. Several Scandinavian countries as well as the Netherlands, France and Portugal all have versions of same-sex union laws on the books.

Under the German version gays and lesbians have rights to inheritance and hospital visitation. They may refuse to testify against their life partner in a court of law and may share a last name if they so choose. Foreigners with German partners will be allowed to remain in country indefinitely.

However, same-sex couples cannot adopt children, nor do they have the tax advantages enjoyed by heterosexual spouses.

In order to get last year’s legislation passed and avoid the conservative-controlled Bundesrat, the upper house of parliament which must approve bills concerning financial affairs of the states, partnership proponents split the law in two, leaving the tax question for a later day.

That day may be approaching, since the judges’ ruling on Tuesday can be interpreted as giving the green light for passage of tax benefits for same-sex couples. The "protection of marriage" in the constitution, the judges wrote, "does not mean that marriage must be protected more than other forms of life partnership." The Green Party’s Volker Beck has announced he will move forward on the tax question.

Conservative Reaction

Edmund Stoiber, Premier of Bavaria and candidate for chancellor in this fall’s elections, said he regretted the court’s decision, but added that in the event that his conservative Union coalition wins on September 22nd, it will not challenge the law.

Even so, the law would not have much support from such a government. The woman seen as the probable Family Minister in a Stoiber government, unmarried mother Katherina Reiche, has publicly come out against the partnership law. Stoiber has said he will vigorously fight attempts to grant gay and lesbian couples the same tax advantages heterosexual couples enjoy.

The Catholic church, which vigorously fought the law last year before its adoption, has also expressed regret over the court’s ruling. The head of the German Bishops’ Conference, Cardinal Karl Lehmann, said the result of Wednesday’s decision would mean the institution of marriage would suffer, and with it, society as a whole.

Rush to the Altar?

There are an estimated 47 000 same-sex couples in Germany, of those about 4,500 have already tied the knot and become registered partners. According to Volker Beck, part of the reason more have not done so has been the insecurity they have felt because of the court challenge. Now that has all changed.

"I don’t think the wedding registry offices are going to overflowing," he said in an radio interview, "but the ruling is definitely going to give partnerships a strong push and I think we’re going to the numbers of them going up substantially."