Same-sex marriage in Germany

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Legal status of same-sex unions
Marriage
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Same-sex marriage became legal in Germany on 1 October 2017. A bill for legalisation passed the Bundestag on 30 June 2017 and the Bundesrat on 7 July. It was signed into law on 20 July by President Frank-Walter Steinmeier and published in the Federal Law Gazette on 28 July 2017.

Previously, from 2001 until 2017, registered life partnerships (Eingetragene Lebenspartnerschaft) had been available for same-sex couples. The benefits granted by these partnerships were gradually extended by the Federal Constitutional Court (Bundesverfassungsgericht) throughout several rulings until they provided for most but not all of the rights of marriage.

Registered life partnerships[edit]

Laws regarding same-sex partnerships in Europe
  Marriage1
  Foreign marriages recognized1
  Other type of partnership1
  Unregistered cohabitation1
  Unrecognized
  Constitution limits marriage to opposite-sex couples

1May include recent laws or court decisions which have created legal recognition of same-sex relationships, but which have not entered into effect yet.

First and second Schröder governments (1998–2005)[edit]

The Act on Registered Life Partnerships of 2001 was a compromise between proponents of same-sex marriage and conservatives from the two major conservative parties, whose MPs' interpretation of marriage excluded gays. The act grants a number of rights enjoyed by married, opposite-sex couples. It was drafted by Volker Beck from The Greens and was approved under the Green/Social Democratic Coalition Government. The Bundestag approved it in November 2000 with the government parties voting in favour and the opposition parties CDU/CSU and FDP voting against. President Johannes Rau signed the law on 16 February 2001 and it entered into force on 1 August 2001.

On 17 July 2002, the Federal Constitutional Court of Germany upheld the act.[1][2] The Court found, unanimously, that the process leading to the law's enactment was constitutional. The 8-member Court further ruled, with three dissenting votes, that the substance of the law conforms to the Constitution, and ruled that these partnerships could be granted equal rights to those given to married couples. (The initial law had deliberately withheld certain privileges, such as joint adoption and pension rights for widow(er)s, in an effort to observe the "special protection" which the Constitution provided for marriage and the family. The court determined that the "specialness" of the protection was not in the quantity of protection, but in the obligatory nature of this protection, whereas the protection of registered partnerships was at the Bundestag's discretion.)

On 12 October 2004, the Gesetz zur Überarbeitung des Lebenspartnerschaftsrechts (Registered Life Partnership Law (Revision) Act) was passed by the Bundestag, increasing the rights of registered life partners to include, among other things, the possibility of stepchild adoption and simpler alimony and divorce rules, but excluding the same tax benefits as in a marriage. It took effect on 1 January 2005.[3]

First Merkel Government (2005–2009)[edit]

In July 2008, the Federal Constitutional Court of Germany ruled that a transsexual person who transitioned to female after having been married to a woman for more than 50 years could remain married to her wife and change her legal gender to female. It gave the Bundestag one year to effect the necessary change in the relevant law.[4]

On 22 October 2009, the Constitutional Court ruled that a man whose employer had given him and his registered partner inferior pension benefits on account of him not being married was entitled to the same benefits he would receive were he and his partner married and of opposite sexes.[5] The court's decision mandated equal rights for same-sex registered couples not just in regard to pension benefits, but in regard to all rights and responsibilities currently applying to married couples.[6]

Second Merkel Government (2009–2013)[edit]

On 25 October 2009, the Government Programme of the new Christian Democratic-Free Democratic coalition was released. It stipulated that tax inequality between (same-sex) life partners and (opposite-sex) married couples would be removed and would codify into law the Constitutional Court's ruling of 22 October 2009.[7] However, the Government Programme did not mention adoption rights.[8]

On 17 August 2010, the Federal Constitutional Court ruled that the surviving partners of registered partnerships are entitled to the same inheritance tax rules as the survivors of mixed-sex marriages. Surviving marital partners paid 7–30% inheritance tax while surviving registered partners paid 17–50%.[9]

On 18 February 2013, the Federal Constitutional Court broadened the adoption rights for registered partners.[10] A partner must be allowed to adopt the other partner's adopted child, a so-called "successive adoption", and not only a partner's biological child. However, the Government did not bring up a vote in Parliament to change the adoption laws before it adjourned in June 2013. The Court gave the Parliament the deadline of 30 June 2014 to change the laws.[11]

On 6 June 2013, the Federal Constitutional Court ruled that registered partnerships should have joint tax filing benefits equal to those of married (opposite-sex) couples. The Parliament had to change the law retroactively, and did so within a month.[12][13]

Third Merkel Government (2013–2017)[edit]

Opponents of same-sex marriage protest against the law on 15 September 2017 in front of the Bundeskanzleramt
Supporters of same-sex marriage counter-protest, 15 September 2017

While the new CDU/CSU-SPD Government had to allow successive adoption by June 2014 as required by the 2013 Federal Constitutional Court ruling, the Court was expected to rule in 2014 whether registered partners must be allowed to jointly adopt children as well, but dismissed the case in February 2014 on procedural grounds.[14][15]

In March 2014, the Government approved the proposed law to allow successive adoption, with discussion on whether or not to implement full adoption equality. The Bundesrat recommended full adoption equality,[16] and a Bundestag Committee held a hearing on the topic.[17] On 22 May, the Bundestag passed the law while rejecting proposals by The Greens for full adoption equality.[18] Another law to grant full tax equality passed unanimously in the Bundestag, finishing the required legal changes following the June 2013 court ruling.[19]

In October 2015, the Bundestag approved a government bill modifying a series of laws concerning registered partnerships. It gave the same rights as married couples in several legal areas; there were however no noteworthy changes. The bill passed the Bundesrat in November.[20]

Entering into life registered partnerships is no longer possible after the law allowing marriage for same-sex couples took effect on 1 October 2017. Existing partnerships can retain their status or be converted into marriage.[21]

Statistics[edit]

The Registered Life Partnership Act went into effect on 1 August 2001. By October 2004, 5,000 couples had registered their partnerships.[22] By 2007, this number had increased to 15,000, two thirds of these being male couples.[23] By 2010, this number had increased to 23,000.[24][25] By 9 May 2011, 68,268 people reported being in a registered partnership.[26]

By the end of 2016, 44,000 registered partnerships had been conducted in Germany. Approximately 25,000 (56.8%) were between men, while 19,000 were between women (43.2%).[27]

Same-sex marriage[edit]

History[edit]

CDU/CSU, the senior member parties of Germany's Coalition Government since 2005, have historically been opposed to the legalisation of same-sex marriage. The Green Party, the Social Democratic Party, and the Left Party support same-sex marriage and voted in July 2012 for a defeated bill to legalise it.[28][29][30] The Free Democratic Party supports same-sex marriage, though the party rejected same-sex marriage legislation when they were part of a coalition government with the CDU/CSU between 2009–2013. Similarly, the Social Democratic Party agreed to oppose same-sex marriage when in government with the CDU/CSU between 2013–2017. All other parties made agreement on same-sex marriage a condition for joining a coalition government with the CDU/CSU after the 2017 election.[31]

Second Merkel Government (2009–2013)[edit]

The Greens, in opposition, released a draft law on same-sex marriage in June 2009.[28] In March 2010, the Senate of Berlin announced its intention to introduce a same-sex marriage bill in the Bundesrat, the federal representation of the German states. According to the Senate, this law would best fit the Constitutional Court's ruling that same-sex couples must be equally treated as heterosexual ones.[32] The Bundesrat rejected the law in September 2010.[33] Only Berlin, Brandenburg, Bremen and North Rhine-Westphalia voted in favour of the same-sex marriage bill; the other 12 Länder did not.

In June 2011, the Senate of Hamburg, following CDU losses in state elections around the country, also announced its intention to introduce a same-sex marriage bill in the Bundesrat.[34]

On 28 June 2012, a Green Party motion in the Bundestag (Federal Diet) to legalise same-sex marriage was defeated by a vote of 309 to 260, with 12 abstentions. The motion was meant to give parity to same-sex couples in adoption and for tax purposes. Members of the ruling coalition of Union parties and Free Democratic Party voted against the proposal while opposition parties Social Democratic Party, Greens, and The Left supported it.[35]

On 22 March 2013, the Bundesrat passed an initiative proposed by 5 states (Hamburg, Lower Saxony, North Rhine-Westphalia, Rhineland-Palatinate and Schleswig-Holstein) which would open marriage to same-sex couples.[36] The bill was sent to the Bundestag for a vote,[37] however, the ruling coalition was still the same as in 2012 when the previous proposal was defeated.

Third Merkel Government (2013–2017)[edit]

Federal elections were held on 22 September 2013, after which a new government coalition was formed. The new Bundestag, which started on 22 October, again consisted of a theoretical majority of parties in favour of same-sex marriage (SPD, Die Linke and The Greens). Die Linke immediately introduced a bill to legalise same-sex marriage, but SPD did not support it, in order to not jeopardise the negotiations of the government formation.[38][39] Even though the SPD had campaigned on "100% equality" for LGBT people, the coalition agreement between CDU, CSU and SPD did not contain any significant change regarding LGBT rights.[40] Die Linke's bill had its first reading on 19 December 2013 and was subsequently sent to the committees.[41]

On 5 June 2015, nine states (Baden-Württemberg, Brandenburg, Bremen, Hamburg, Lower Saxony, North Rhine-Westphalia, Rhineland-Palatinate, Schleswig-Holstein and Thuringia) submitted a same-sex marriage bill to the Bundesrat (Federal Council).[42] On 12 June 2015, it had its first reading and was sent to the committees. In the Bundestag, the opposition party Alliance '90/The Greens submitted a further bill on 10 June 2015.[43] It had its first reading on 18 June 2015 and was sent to the committees.[44] On 25 September 2015, the Bundesrat voted to approve the bill legalising same-sex marriage.[45][46][47] The bill moved to the Bundestag, where the governing parties (CDU/CSU and SPD) blocked the consideration of all three pending same-sex marriage bills in the Legal Affairs Committee.[48]

On 14 August 2016, despite the lack of legal recognition for same-sex marriage, two men were married in Berlin's Marienkirche by two Protestant pastors, the first same-sex marriage performed in a German church.[49]

In March 2017, the SPD, the junior partner in the Coalition Government, announced they would press the CDU to legalise same-sex marriage in the face of overwhelming public support.[50] SPD's leader in the Bundestag Thomas Oppermann said his party would introduce a bill, in addition to the long-pending bills of the Greens, The Left and the one referred from the Bundesrat,[51] but did not do so. On 20 June 2017, the Federal Constitutional Court rejected an application by the Greens for an injunction ordering a parliamentary committee to send bills legalising same-sex marriage to lawmakers for a vote in Parliament's last pre-election session.[52]

On 17 June 2017, the Greens pledged not to participate in any governing coalition after the 2017 elections, unless the legalisation of same-sex marriage was part of the agreement.[53][54] On 24 June, FDP leader Christian Lindner said that he would recommend that his party makes a similar commitment,[55][56] and the following day, the SPD made a similar pledge.[57][58]

Bundestag vote & Bundesrat approval (2017)[edit]

The first same-sex couple to marry in Germany, 1 October 2017

On 27 June 2017, answering audience questions at a public forum in Berlin, Chancellor Merkel unexpectedly stated that she hoped the matter would be put to a conscience vote in the Bundestag in the near future.[31][59] The next day, several politicians called for a vote to be held later that week, in the last session before summer recess. SPD chairman Martin Schulz promised that his party would arrange for a vote to take place.[60][61] Later that day, both Union parties announced that they would allow their MPs a conscience vote, although they opposed a vote on the issue before the next election.[62] Also that day (28 June), SPD, Green and Left members of the Legal Affairs Committee voted to schedule a plenary vote on the bill proposed by the Bundesrat in 2015, outvoting CDU/CSU members.[63][64][65][66] The Greens and The Left withdrew their own respective bills.[67][68]

On 30 June, the Bundestag debated and passed the bill by 393–226, with 4 abstentions and 7 absentees.[69][70][71][72] Merkel herself, whose change of position had led to the vote being held, voted against the legislation, but said that she hoped the result "not only promotes respect between the different opinions but also brings more social cohesion and peace".[73][74] On 7 July, the Bundesrat approved the bill without a vote, because there were no requests for reconciliatory sessions (German: Vermittlungsausschuss).[75][76][77][78] The bill was signed into law on 20 July 2017 by President Frank-Walter Steinmeier.[79][80][81] The law was published on 28 July 2017 in the Federal Law Gazette and came into force the first day of the third month after publication (i.e.: 1 October 2017).[82][83] Same-sex couples started to get married all over Germany that day, with the first same-sex wedding taking place in Schöneberg, Berlin between Karl Kreile and Bodo Mende.[84][85][86]

30 June 2017 vote in the Bundestag[87][88][89]
Party Voted for Voted against Abstention Did not vote
 G  Christian Democratic Union/Christian Social Union (CDU/CSU) 75 225 4 5
 G  Social Democratic Party of Germany (SPD) 192 1
     The Left (Die Linke) 63 1
     Alliance 90/The Greens (B90/Grüne) 63
     Erika Steinbach (independent) 1
Total 393 226 4 7
62.4% 35.9% 0.6% 1.1%

Several legal experts, including MPs and party leaders, raised doubts about the legality of the law, with former President of the Federal Constitutional Court Hans-Jürgen Papier arguing that same-sex marriage is inconsistent with previous definitions of marriage espoused by the court.[90][91][92] Article 6(1) of the Constitution, places "marriage and family" under the "special protection of the state order".[93][94][95] An amendment to the Constitution requires a two-thirds majority in both houses. These concerns were dismissed by Federal Justice Minister Heiko Maas, who argued that Article 6(1) neither defines the term marriage nor rules out a wider definition.[92]

Following the passage of the law, the Bavarian Government and Alternative for Germany (AfD) party both said they would consider petitioning the court for a judicial review (German: abstrakte Normenkontrolle),[96][97] however the AfD lacks legal standing to bring a challenge, as it is not part of the Federal Government or any state government, nor does it have the necessary quarter of MPs in the Bundestag.[98] On 6 March 2018, the Bavarian Government announced it would not challenge the law, after commissioned assessments found its chances to be successful as low.[99][100][101]

Statistics[edit]

From October to the end of December 2017, 680 same-sex couples got married in Berlin.[102] Of these, 181 wed in Tempelhof-Schöneberg, 100 in Charlottenburg-Wilmersdorf and 97 in Friedrichshain-Kreuzberg, while the remaining couples married in the 9 other boroughs. During these three months, same-sex marriages accounted for 18.4% of all Berlin marriages.

168 same-sex marriages were performed in Stuttgart from October to December 2017. Most of these were conversions from registered partnerships.[103]

In Mannheim, 135 same-sex couples got married between October 2017 and February 2018. All but 16 of these were conversions from partnerships. In Freiburg im Breisgau, the number of same-sex marriages was 46.[103]

By the end of March 2018, more than 1,000 same-sex marriages had taken place in Berlin (four boroughs did not published their marriage statistics, leaving incomplete data), 900 in Hamburg, 644 in Cologne, 477 in Münich, 216 in Frankfurt, 192 in Düsseldorf, 180 in Dortmund and 158 in Hannover.[104] Most of these were conversions from partnerships.

Public opinion[edit]

In December 2006, a poll conducted by the Angus-Reid Global Monitor, seeking public attitudes on economic, political, and social issues for member-states of the European Union found that Germany ranked seventh supporting same-sex marriage with 52% popular support. German support for same-sex marriage was above the European Union average of 44%.[105]

In January 2013, a poll conducted by the YouGov found that German support for same-sex marriage was 66% for, 24% opposed and 10% didn't know. Support for same-sex adoption was 59% for, 31% opposed and 11% didn't know.[106]

A February 2013 poll found that 74% of the German people were supportive of same-sex marriage, with 23% against. Support was recorded to be strongest among Greens and Social Democratic (SPD) voters, but even among voters of Chancellor Angela Merkel's governing Christian Democrats (CDU) almost two-thirds were in favour, the poll showed.[107]

A May 2013 Ipsos poll found that 67% of respondents were in favour of same-sex marriage and another 12% supported other forms of recognition for same-sex couples.[108]

According to the Ifop poll, conducted in May 2013, 74% of Germans supported allowing same-sex couples to marry and adopt children.[109]

According to an October 2013 poll by TNS Emnid, 70% supported full legal equality of registered partnerships and marriage.[110]

According to a May 2015 poll by YouGov, 65% supported same-sex marriage (by party: 57% of CDU voters, 79% of SPD voters, 68% of Die Linke voters and 94% of Green voters). Another 28% opposed same-sex couples to marry and 7% didn't know. Support rose to 75% among 18- to 24-year-olds, but fell to 60% among those aged 55 and over, 64% among Catholics and 63% among Protestants. Support for same-sex adoption was 57% for, 35% opposed and 8% didn't know.[111]

The 2015 Eurobarometer found that 66% of Germans thought that same-sex marriage should be allowed throughout Europe, 29% were against.[112]

Another May 2015 poll by TNS Emnid found out that 64% of Germans supported same-sex marriage (by party: 63% of CDU/CSU voters, 77% of SPD voters, 63% of FDP voters, 62% of The Left voters, 89% of Green voters and 14% of AfD voters). Another 31% were opposed and 5% didn't know.[113]

A June 2015 poll by INSA showed that 65% of Germans supported same-sex marriage (by party: 58% of CDU voters, 75% of SPD voters, 72% of Die Linke voters, 79% of Green voters, 65% of FDP voters, and 42% of AfD voters).[114]

In January 2017, a study by Germany's Federal Anti-Discrimination Agency indicated that 83% of Germans were in favour of same-sex marriage.[115]

A June 2017 poll found that 73% of Germans supported same-sex marriage, including 95% of Green voters, 82% of SPD voters, 81% of Die Linke voters, 64% of CDU voters, 63% of FDP voters, and 55% of AfD voters.[116]

A Pew Research Center poll, conducted between April and August 2017 and published in May 2018, showed that 75% of Germans supported same-sex marriage, 23% were opposed and 2% didn't know or refused to answer.[117] When divided by religion, 86% of religiously unaffiliated people, 82% of non-practicing Christians and 53% of church-attending Christians supported same-sex marriage.[118]

See also[edit]

References[edit]

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External links[edit]