Last Friday, June 30, the German Bundestag voted in favour of same-sex marriage, called ‘marriage for all’ (following François Hollande). The bill will no doubt be passed by the Bundesrat and signed by the President and become law in the autumn. But will there be a constitutional challenge?
June 30 was the last day of Angela Merkel’s current parliament and as there is to be a general election, the marriage-for-all bill, which had been introduced at least three years earlier, would otherwise have failed. I haven’t been following this closely and it’s a big issue, so please do further reading for details and don’t rely on me. But I believe that the Green Party applied unsuccessfully to the Federal Constitutional Court to make sure that the bill could be voted on on June 30 at the latest. (I can see the sense of the Court not intervening in the parliamentary process).
The CDU and CSU are traditionally against same-sex marriage, but on June 27 Angela Merkel permitted a free vote in the Bundestag, so suddenly it became possible for the bill to be passed, as not only some CDU and CSU members were in favour of it, but the SPD would also have been bound as part of the coalition government . The suddenness almost recalls the sudden opening of the Berlin wall in 1989.
New York Times:
Ms. Merkel, when asked Monday evening about gay adoption, cited what she said was a recent meeting with a lesbian who invited the chancellor to visit her and her partner’s home in Ms. Merkel’s parliamentary constituency in northern Germany, where the couple has raised at least eight foster children.
The chancellor said she had not had time to take up the invitation, but she used it as a way to illustrate that it may often be better for children to live permanently with a loving couple no matter what their sex, rather than moving from home to home in foster care.
Although Frau Merkel voted against the bill – she could be seen putting a red ticket into the ballot box – it’s been suggested that in acting this late before the election she was both avoiding a long discussion in the Bundestag and improving her chances in the election, since marriage for all was one of the issues on which Martin Schulz was going to campaign.
German legal bloggers disagree on what will happen next. Here is Maximilian Steinbeis at Verfassungsblog (lots of English there)Merkel’s Conscience:
In some way, the right always seems to succeed in making themselves believe that their reading of the constitution is somehow dictated by nature. They did that with the opening of the borders in 2015, and now they do the same with the opening of marriage in 2017. There will always be some constitutional law professor who certifies their constitutional interpretation with utmost authority, so they can keep on shaking their heads in a distressed and indignant way at the turpitude of these liberals that so blatantly disobey their own liberal constitution.
To not let them get away with that, to pierce their self-congratulatory constitutional certainty and force them to justify their readings of the law – this should be the task of constitutionalists.
Steinbeis goes on to link to Matthias Hong, who reads the Constitution differently Warum das Grundgesetz die Ehe für Alle verlangt.
A different view is presented by Andreas Schwartmann in Rheinrecht – Meinung: Diese “Ehe für Alle” ist verfassungswidrig.