Same-sex marriage in Germany

Legal status of same-sex unions
Marriage
Performed
Recognized

  1. Marriages performed in some municipalities and recognized by the state
  2. For some purposes, from all jurisdictions where same-sex marriage is legal
  3. When performed in Mexican states that have legalized same-sex marriage
  4. When performed in the Netherlands proper
  5. Registration schemes opened in all jurisdictions except Hualien County, Penghu County, Taitung County, and Yunlin County

* Not yet in effect

LGBT portal

Since 1 August 2001, Germany has allowed registered life partnerships (Eingetragene Lebenspartnerschaft) for same-sex couples. These partnerships provide most but not all of the rights of marriage. The Federal Constitutional Court has issued various rulings in favour of equal rights for same-sex registered partners, requiring the governing coalition to change the law.

On 30 June 2017, the Bundestag passed a bill that allows same-sex marriage. The bill passed the Bundesrat on 7 July and it was signed into law on 20 July 2017 by President Frank-Walter Steinmeier. Barring any successful legal challenge, the law is expected to come into force the first day of the third month after publication (i.e.: 1 October 2017).

Registered life partnerships

First and second Schröder governments (1998–2005)

An 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 excludes 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)

In July 2008, 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 legislature 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)

On 25 October 2009, the Government Programme of the new Christian Democratic-Free Democratic coalition was released. It stipulated that any inequality of rights 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. However, the Government Programme did not mention adoption rights.[7]

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%.[8]

On 18 February 2013, the Federal Constitutional Court broadened the adoption rights for registered partners.[9] 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.[10]

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.[11][12]

Third Merkel government (2013–2017)

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.[13][14]

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,[15] and a Bundestag Committee held a hearing on the topic.[16] On 22 May, the Bundestag passed the law while rejecting proposals by The Greens for full adoption equality.[17] Another law to grant full tax equality passed unanimously in the Bundestag, finishing the required legal changes following the June 2013 court ruling.[18]

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.[19]

Entering into life registered partnership will no longer be possible once the law opening marriage for same-sex couples take effect. The existing partnerships would retain their status or be converted into marriage.[20]

Same-sex marriage

History

Laws regarding same-sex partnerships in Europe
  Marriage
  Foreign marriages recognized
  Other type of partnership
  Unregistered cohabitation
  Unrecognized
  Constitution limits marriage to opposite-sex couples
----

CDU/CSU, the senior member party of Germany's coalition government since 2005, has 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 for a defeated bill to legalise it.[21][22][23] 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.[24]

Second Merkel government (2009–2013)

The Greens, in opposition, released a draft law on same-sex marriage in June 2009.[21] 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.[25] The Bundesrat rejected the law in September 2010.[26] 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.[27]

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.[28]

On 22 March 2013, the Bundesrat passed an initiative proposed by 5 states, which would open marriage to same-sex couples.[29] The bill was sent to the Bundestag for a vote,[30] however, the ruling coalition was still the same as in 2012 when the previous proposal was defeated.

Third Merkel government (2013–2017)

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.[31][32] 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.[33] Die Linke's bill had its first reading on 19 December 2013 and was subsequently sent to the committees.[34]

On 5 June 2015, nine states submitted a same-sex marriage bill to the Bundesrat (Federal Council).[35] 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.[36] It had its first reading on 18 June 2015 and was sent to the committees.[37] On 25 September 2015, the Bundesrat voted to approve the bill legalising same-sex marriage.[38][39][40] 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.[41]

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.[42]

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.[43] 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,[44] 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.[45]

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.[46][47] On 24 June, the FDP leader Christian Lindner said that he would recommend that his party makes a similar commitment,[48][49] and the following day, the SPD made a similar pledge.[50][51]

Bundestag vote & Bundesrat approval (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.[24][52] 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.[53][54] 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.[55] 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.[56][57][58][59] The Greens and The Left withdrew their own respective bills.[60][61]

On 30 June, the Bundestag debated and passed the bill by 393–226, with 4 abstentions and 7 absentees.[62][63][64][65] 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".[66][67] On 7 July, the Bundesrat approved the bill without a vote, because there were no requests for reconciliatory sessions (German: Vermittlungsausschuss).[68][69][70][71] The bill was signed into law on 20 July 2017 by President Frank-Walter Steinmeier.[72][73][74] The law was published on 28 July 2017 in the Federal Law Gazette and, barring any successful legal challenge, the law will come into force the first day of the third month after publication (i.e.: 1 October 2017).[75][76]

Several legal experts, as well as MPs including Federal Minister Thomas de Maizière and CDU/CSU faction leader Volker Kauder, have raised doubts about the constitutionality of the bill, arguing that it violates Article 6(1) of the Basic Law, which places "marriage and family" under the "special protection of the state order".[77][78][79][80] Former President of the Federal Constitutional Court Hans-Jürgen Papier argued that same-sex marriage is inconsistent with previous definitions of marriage espoused by the court, and a constitutional amendment is needed.[81][82] Such an amendment would require a two-thirds majority in both houses. These concerns have been disputed by others, including Federal Justice Minister Heiko Maas, who have argued that Article 6(1) neither defines the term marriage nor rules out a wider definition. Some legal scholars expect the court to be sympathetic to a pragmatic solution.[77] The Minister President of Bavaria and CSU chairman Horst Seehofer and his Justice Minister Winfried Bausback said that the Bavarian Government would consider petitioning the court for a judicial review (German: abstrakte Normenkontrolle)[83][84] Alternative for Germany (AfD) also announced its intention to petition the court,[79][85] although the party is unlikely to have any 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.[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%

Statistics

The registered partnerships act went into effect on 1 August 2001. By October 2004, 5,000 couples had registered their partnerships. By 2007, this number had increased to 15,000, two thirds of these being male couples.[90] By 2010, this number had increased to 23,000.[91][92] By 9 May 2011, this number had increased to 68,268.[93]

Public opinion

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%.[94]

In January 2013, a poll conducted by the YouGov found that German support for same-sex marriage is 66% for, 24% opposed and 10% don't know. Support for same-sex adoption is 59% for, 31% opposed and 11% don't know.[95]

A February 2013 poll found 74% of the German people supporting 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.[96]

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.[97]

According to the Ifop poll, conducted in May 2013, 74% of Germans supported allowing same-sex couples to marry and adopt children.[98]

According to an October 2013 poll by TNS Emnid, 70% support full legal equality of registered partnerships and marriage.[99]

According to a May 2015 poll by YouGov, 65% support 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% oppose same-sex couples to marry and 7% don't know. The support rises to 75% among 18- to 24-year-olds, but falls to 60% among those aged 55 and over, 64% among Catholics and 63% among Protestants. Support for same-sex adoption is 57% for, 35% opposed and 8% don't know.[100]

The 2015 Eurobarometer found that 66% of Germans thought that same-sex marriage should be allowed throughout Europe, 29% were against.[101]

Another May 2015 poll by TNS Emnid found out that 64% of Germans support 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% are opposed and 5% don't know.[102]

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).[103]

In January 2017, a study by Germany's Federal Anti-Discrimination Agency indicated that 83% of Germans were in favour of same-sex marriage.[104]

See also

References

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  2. ↑ "Lifetime Partnership Act of Germany".
  3. ↑ (in German) Gesetz zur Überarbeitung des Lebenspartnerschaftsrechts
  4. ↑ "Cyberpresse.ca - Erreur 404". www.cyberpresse.ca.
  5. ↑ "High court backs equal rights for gay marriages". Thelocal.de. 2009-10-25. Retrieved 2010-12-13.
  6. ↑ (in German) Verfassungsgericht zu Homo-Ehe - Ehe, Partner, Kinder
  7. ↑ (in German) Die FDP hat ihre Wahlversprechungen gehalten!
  8. ↑ "German court: gay couples entitled to equal treatment on inheritance tax". The Canadian Press. Associated Press. 2010-08-17. Retrieved 2010-08-17.
  9. ↑ "Court Ruling: Germany Strengthens Gay Adoption Rights". Spiegel. 2013-02-19.
  10. ↑ (in German) Decision by the Federal Constitutional Court
  11. ↑ "High Court Ruling: Germany Grants Tax Equality to Gay Couples". Spiegel. 2013-06-06.
  12. ↑ "Bundesrat beschließt Ehegattensplitting für Homo-Paare" (in German). Queer.de. 5 July 2013.
  13. ↑ "Sukzessivadoption: Maas erledigt Hausaufgaben von Schwarz-Gelb" (in German). Queer.de. 16 January 2014.
  14. ↑ "Karlsruhe: Vorerst kein Urteil zum Adoptionsrecht" (in German). Queer.de. 21 January 2014.
  15. ↑ "Bundesrat für volles Adoptionsrecht für Homo-Paare" (in German). Queer.de. 11 April 2014.
  16. ↑ "Bundestag: Öffentliche Anhörung zum Adoptionsrecht" (in German). Queer.de. 30 April 2014.
  17. ↑ "Homo-Paare erhalten Recht auf Sukzessivadoption" (in German). Die Welt. 22 May 2014.
  18. ↑ "Weitere Gleichstellung im Steuerrecht" (in German). Queer.de. 7 May 2014.
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  22. ↑ (in German) Öffnung der Ehe für Lesben und Schwule
  23. ↑ (in German) Dittmar: Klares Signal zur Gleichstellung von Lesben und Schwule Archived 9 December 2011 at the Wayback Machine.
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  27. ↑ (in German)
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  33. ↑ "Große Koalition vertagt die Gleichstellung" (in German). Queer.de. 27 November 2013.
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  79. 1 2 "AfD will gegen Ehe für alle klagen". Der Spiegel (in German). 2 July 2017. Retrieved 2 July 2017.
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  97. ↑ "Same-Sex Marriage". Ipsos. 21 May 2013. Archived from the original on 14 March 2016.
  98. ↑ (in French) Enquête sur la droitisation des opinions publiques européennes Archived 1 February 2016 at the Wayback Machine.
  99. ↑ TNS Emnid poll on 15–16 October 2013, 1010 respondents
  100. ↑ "Mehrheit der Deutschen für Homo-Ehe".
  101. ↑ Special Eurobarometer 437 Archived 22 January 2016 at the Wayback Machine.
  102. ↑ "May 2015 Poll".
  103. ↑ "BILD-Umfrage: Zwei Drittel der Deutschen sind für die "Homo-Ehe"".
  104. ↑ "Germans not opposed to same sex marriage". 12 January 2017.

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